This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Vanity Fair – From Fashion to Housewares, Are We in a Decades-Long Design Rut? – Kurt Andersen – "The past is a foreign country, but the recent past—the 00s, the 90s, even a lot of the 80s—looks almost identical to the present. This is the First Great Paradox of Contemporary Cultural History."

The Atlantic – Various texts – Prince Otto von Bismarck – You can listen to an Edison wax cylinder recording of some nonce verse spoken by Bismarck. (There is another of Helmuth von Moltke, the only known recording of someone born in the 18th century.) The article in the Atlantic explains. And the US National Park Service has a transcription of the recording which makes it almost possible to understand Bismarck.

Discover Magazine – While temperatures rise, denialists reach lower – Phil Plait – The "Bad Astronomer" dissects an error-laden WSJ article entitled "No Need to Panic About Global Warming."

YouTube – Official 2012 Honda CR-V Game Day Commercial: "Matthew's Day Off" Extended Version – Honda and Matthew Broderick – The car company brings back Ferris Bueller's Day Off in a delightful reprise of that great flic.

berfrois – Psychiatry and Japan’s “National Disease” – Junko Kitanaka – The author, a medical anthropologist, takes a look at Japan's vexed relationship with psychiatry and the country's problem with depression and suicide, often resulting from overwork.

CulturalEquity.org – A sampler of 5 Lomax recordings of American folk singers – Various artists – The link takes you right into a playlist of five songs of different styles, all recorded by the great Alan Lomax and released recently on CulturalEquity's new label, Global Jukebox. The Bright Light Quartet is my fave.

The New Yorker – Private Inequity – James Surowiecki – "How private equity firms like Bain Capital earn profits." A critical look at a company once graced with Mitt Romney's presence.

Wired – Opposites Don’t Attract (And That’s Bad News) – Jonah Lehrer – "[O]ur ancient social instincts lead us in the wrong direction, so that we end up trapped within a bubble of homogeneity." Look to your left, look to your right: say hello to yourselves.

IHT Rendezvous – One Country, Two Systems? Not Lately – Mark McDonald – Hong Kongers and Chinese mainlanders feud and spit in a series of spats recently that reveal some lack of harmony. The video in the article, and the cellphone video referred to, tell the story quite graphically, even to someone who doesn't have Cantonese or Mandarin.

The European Magazine – A Future Without Cars? Shifting the Paradigm – Felix Creutzig – "Can the car be retired? Hardly so. But in cities that conceive of mobility as a public good, cars can be integrated with other forms of transportation to create a versatile and flexible system of transportation." Hear that, Mayor Ford? And from a German, too.

At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article on Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Polyvore – A fashion shopper's playground, where users get to clip their favourite products from across the web and present them to others. There's a page as well where you can drag and drop separates to form the ensemble of your (momentary) dreams. This is perhaps the consumer's equivalent of Scrooge McDuck's bathing in currency. The bag is Prada.

MIT Technology Review (India) – The Mystery Behind Anesthesia – Courtney Humphries – "Mapping how our neural circuits change under the influence of anesthesia could shed light on one of neuroscience's most perplexing riddles: consciousness."

BBC News Magazine – Arctic Canada caught on 1919 silent film – Hudson Bay Company – This silent film, "The Romance of the Far Fur Country," made to mark the 250th anniversary of the Hudson Bay Company (in 1919) has been restored and digitized.

New York Times – The World's Most Exclusive Condominium – Frank Jacobs – And by condominium I mean a piece of territory shared, as it were, between two sovereign nations. The article talks about Pheasant Island between France and Spain, and then goes on to tell Canada how it and Denmark should solve their problem over Hans Island. Thanks.

Charlie Rose – The Brain Series – Charlie Rose – In more than a dozen hour-long videos, this TV interviewer leads panels of experts in an exploration of your favourite organ. Highly recommended.

Slate Magazine – Pearl clutching: how the phrase became a feminist blog cliché – Torie Bosch – "The phrase pearl clutching, which means being shocked by something once-salacious that should now be seen as commonplace, like sex, is ubiquitous on blog posts, especially in media geared towards women." I hadn't known.

The Inky Fool – The Fifty Most Quoted Lines of Poetry – M.H. Forsyth – #49: Full fathom five thy father lies. Which makes you wonder what a piece of work is man. If nothing else, this list will propel you out of your own pat rote rimes and into something… better.

YouTube – How Money is Made (1920) – (posted by Brain Pickings) – Another silent film from Canada, this one about the Royal Canadian Mint. "Do you remember biting that alleged half-dollar you took in change from the banana-man? Or dropping it on the table?"

McSweeney's – In Which I Fix
My Girlfriend’s Grandparents’ WiFi and Am Hailed as a Conquering Hero – Mike Lacher – A winter fable in which the Warrior takes on the Router and (very unlike me in similar circumstances) wins.

NPR – Sweet, Sour, Salty, Bitter … and Umami – Robert Krulwich – Listen to the tale of the discovery—and re-discovery—of umami, the fifth taste.

At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article of Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Intelligent Life – Notes on a Voice #9: How to Write Like Shakespeare – Robert Butler – One trick is to have a friendly competition with a Kit Marlowe who is flinging out the good stuff just ahead of you.

The New Yorker – “Labyrinth” – Roberto Bolaño – An excerpt from the late Chilean writer's book, The Secret of Evil, soon to be published in English (translated by Chris Andrews).

NYTimes Video – Seared Frozen Steak – Nathan Myhrvold – A clear demonstration of what is possibly the easiest way to cook a perfectly done steak. I like the blowtorch option.

Discover Magazine – Leave Los Niños Alone! The Mental Costs of Linguistic Assimilation – Julie Sedivy – The linguist, who grew up partly in Montreal, inveighs against those who would force a unilingual society—and has evidence of cognitive advantages to back up her support of bi- and multi-lingualism.

Saveur – Posh Nosh – Richard E. Grant and Arabella Weir – A delightful sendup of those snobby cooking shows one used to see more of before the frantic fight-to-the-death model spread like e-coli.

Wired Magazine – High Tech Cowboys of the Deep Seas: The Race to Save the Cougar Ace – Joshua Davis – An article from four years ago about salvaging a very large ship that's been wrecked and is perched precariously on its side. (There's a short video as well.)

Information is Beautiful – A Taxonomy of Ideas – David McCandless – An amusing plot of idea kinds on axes of "strength of functionality" and "quality of conceptual structure". Where I live seems to be "strange" and "half-baked" alas. (There's also a drop down list of many other graphic presentations of data.)

The Economist – Why does art have to be mainstream to be significant? – Jonathan Galassi – An interesting Q & A with this distinguished editor, publisher, and poet. "Poetry has a vital place in society, whether it's granted one or not. It exists; it is something people perversely do."

The Guardian – How to make perfect hot chocolate – Felicity Cloake – Verging ever so slightly on the "posh nosh" (see above) side of things, this article nevertheless gets you thinking about the greatest winter drink that isn't Scotch.

The Economist – In praise of a second (or third) passport
– anon – "Multiple identities are natural. Citizenship laws should catch up." Good luck with that in the era of shoes-off airport paranoia. Mind you, passports are only about a hundred years old, so maybe they'll fade away altogether.

JSTOR—Journal Storage, I think—keeps a good portion of English language scholarship, a thousand journals and more, in digital form to serve up to subscribers. Some have felt that corralling scholarship so assiduously behind a paywall is wrong, wrong as antithetical to the fundamental principle of disinterested scholarly inquiry, and wrong as creating a barrier to knowledge that the relatively poorer members of society can't afford to cross. See, for example, this talk by Larry Lessig at CERN, and the politically motivated "hacking" of JSTOR by Aaron Swartz talked about here on Slaw.

But JSTOR, a non-profit venture aimed at taking some of the financial burden off libraries, has made a couple of steps towards open access, the first not quite six months ago and the second scheduled for a couple of months from now. Back in September of 2011, JSTOR made freely available something on the order of half a million journal articles that have entered the public domain, specifically those published in the US from before 1923 and those from Europe published before 1870.

Now JSTOR has announced its intention to institute Register and Read, a program to let anyone have reading access to articles from a small selection (70) of its journals. A viewer can select up to four articles each fortnight and will be unable to print or copy from them. This is explicitly said to be a test, and one presumes that if publishers' revenues don't plummet as a result, some cautious expansion of the program will come about in time.

A list of the participating journals is available in spreadsheet format. Though lawyers are interested in everything, potentially, the journals in the program that are most clearly of interest are: American Society of International Law, Journal of Criminal Law and Criminology, Modern Law Review. (Various publishers appear on the list as such, so it's hard to tell at this point which of their journals will be made available.)

Small as this advance appears to be, for what it's worth Professor Lessig has felt the announcement important enough to merit a tweeted "BRAVO."

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It's also likely that most of them won't be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Visual News – Mountains of Books Become Mountains – Benjamin Starr – Guy Laramee carves stacks of discarded books into fantastic mountainous shapes. All very romantic. And it gives you (me, at least) a strange frisson to see these revered objects cut into stones. Much to do about books today, as you'll see from what follows.

The Atlantic – Torturer's Apprentice – Cullen Murphy – But first, a frisson of the rather more serious kind, because, alas, we need to know. "The new science of interrogation is not, in fact, so new at all: 'extraordinary rendition' and 'enhanced interrogation' and 'waterboarding' all spring directly from the practices of the medieval Roman Catholic Church. The distance, in both technique and ideology, between the Inquisition's interrogation regime and 21st-century America's is uncomfortably short…"

The Economist – Daily chart: Feeling gloomy – anon – A "misery index" for eighteen countries, ranking them on the bases of unemployment and inflation. Canada comes in at #5—from the bottom, thankfully. But what can you say about an index in which Qatar wins?

Type Books – The Joy of Books – crazedadman – This is the video that's got everyone all atwitter. And it is indeed charming. Sure beats trying to imagine what my computers get up to at night.

The Morning News – Now That Books Mean Nothing – Nell Boeschenstein – A woman who has had a double mastectomy finds that though she's a "literary type" books aren't what she wants or needs. (If you don't know The Morning News, you might want to take a look.)

The Daily Beast – "America, But Better" – The Dish – Andrew Sullivan – A delightful sendup of US politics and of Canada in which "Canada" declares his candidacy for President of the United States. Some people on both sides of the border managed to get upset about this vid.

Think Quarterly – Speed – Google – "The Speed issue of Google's Think Quarterly is about this acceleration of everything – what is changing and how it works, why it matters and when it doesn't."

Simon & Schuster – In One Person (an excerpt) – John Irving – A good long free slice from this novelist's new work. If you're on the edge about buying, this could help tip you pro or con.

Los Angeles Magazine – Between the Lines – Dave Gardetta – Thoughts on parking in the car capital of the US. "That prized garage space or curbside spot you’ve been yearning for may be costing you—and the city—in ways you never realized. A journey into the world of parking, where meter maids are under siege, everybody’s on the take, and the tickets keep on coming."

YouTube – The Page Turner – Joseph Herscher – This is how Rube Goldberg and Heath Robinson started, surely. There is something quite splendid about inefficiency, and the more complex the better. If I ever have to turn over a new leaf, this is how I'd like to do it.

In Elusive Destiny: The Political Vocation of John Napier Turner, Carleton University historian Paul Litt has written a sympathetic and interesting account of one of Canada's most gifted political figures. Litt leaves the reader wondering what Canadians missed out on by not having John Turner as Prime Minister for an extended time. Those interested can delve into this book.

Turner did serve as Justice Minister for almost four years (July 1968 – January 1972). He was an activist, reformist and progressive Justice Minister but he also served as Attorney General during the invocation of the War Measures Act during the October Crisis in 1970. We have records of Turner's actions as Justice Minister but Solicitor-Client Privilege shields the advice that he gave Trudeau and the Cabinet regarding the October Crisis. That is unfortunate and serves no good purpose, 40 years after the fact.

Litt makes a strong case for Turner as possibly Canada's best ever Justice Minister. A look at the list and the brief tenures of many Justice Ministers since Confederation shows that there is something to Litt's claim. Turner pursued liberal bail reforms and expropriation reforms. He created the Federal Court. He reformed judicial appointments. He established a Legal Research and Planning section of the Department of Justice. He convened his own justice thinkers conference at Montebello which included Dean of McGill Law Maxwell Cohen, future Supreme Court justices Gerard Le Dain and Gerard La Forest, F.R. Scott and Harvard Law Professor Alan Dershowitz. He created the Canadian Judicial Council and the Law Reform Commission of Canada (pp. 109-19).

Like the brother of his acquaintance Bobby Kennedy, Turner surrounded himself with the best and the brightest. He hired Jerry Grafstein and a hippyish Irwin Cotler fresh out of a grad school who apparently freaked people out with "his long hair and granny glasses" (p. 115).

I was particularly drawn into Litt's account of Turner's attempts to strengthen legal aid. Turner examined the possibility of creating a national legal aid system. According to Litt: "In March 1970 [Turner] announced that he would be negotiating with the provincial attorneys general the establishment of a coast-to-coast federally funded legal aid system that would cover both civil and criminal cases. His plan was modelled on medicare, with federal money to be provided to the provinces if they met certain standards. He won the Canadian Bar Association's endorsement for it that September." (p. 112).

What happened next is both tragic and predictable. The provinces balked, on the grounds of cost and jurisdiction. Turner kept trying. He mooted the possibility of inserting a right to counsel into the charter of rights that was under consideration at the time but again the provinces opposed him. He thought about proceeding unilaterally by amending the Criminal Code – imagine the provinces response to that! In the end, Turner maintained the hope that comprehensive coverage could be achieved through fed-prov negotiation (p. 113).

The discussions that Turner initiated 40 years ago continue but we appear no closer to achieving any agreement on a national legal aid programme, let alone on increased federal participation in provincial programs. In 2011, I am sure that many of the provinces regret the obstinacy of their predecessors.

One wonders what might have been if Turner had pushed harder and had decided to proceed unilaterally if the provinces would not come to an agreement.

We can only speculate. Instead, we are left with the realization that the most political energy that was expended on the legal aid was spent four decades ago. Elusive Destiny could well refer to this file as well.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Triposo Labs – A year long snapshots around the world – These folks have taken the date and location data from digital photos from around the world to form light maps revealing who among the 6+ billion of us was taking pics at any given time. There's a crazy fast flashing movie of a year of global snapshots; but they've also broken out stills showing what's hot on various dates. (The photo above is of you on Canada Day, as it happens.)

The Atlantic – What Americans Keep Ignoring About Finland's School Success – Anu Partanen – And Canadians. There are no private schools in Finland. No standardized test. And precious little competition in the classroom. Finish scores have soared.

Wired Magazine – The Mystery of the Canadian Whiskey Fungus – Adam Rogers – Sometimes it's best not to know what goes into your tipple. On the other hand, this is a fascinating story about a mycological mystery just across the river from Detroit.

YouTube – Gesture recognition with contact-microphones – Mogees – A pair of MIT students have made the world sound in unexpected ways. It may be in aid of a better trackpad or tablet, but I suspect some music will come out of it as well.

The Economist – The wisdom of crowds – anon – A look at how we know what to do when things get a bit crowded (but not "turbulent"). Next time you're on Main Street, try dekeing to the left for a change and see what happens. Remember to say "sorry."

Make Magazine – Dropping a Magnet Through a Copper Pipe – JamesRB1995 – Described as a "simple demonstration of eddy current braking," this 45 second film illustrates a physical phenomenon I'd never heard of before, let alone seen in action. Fun spooky.

The Chronicle of Higher Education – Taking Beauty's Measure – Rachel Shteir – When beauty meets feminism… A review of a couple of books that tell us what happens and what should happen.

Esquire – Chuck Berry Goddamn! – Luke Dittrich – Turns out that the rock and rolling reprobate has not in fact left the building. And it would seem he may have finally caught Maybellene at the top of the hill.

The New York Review of Books – How to Dispel Your Illusions – Freeman Dyson – A review of Daniel Kahneman's really popular book Thinking, Fast and Slow. The (really popular) physicist says it'll give you "a joyful understanding of the practical side of our personalities."

BBC News – Russian scientists to attempt clone of woolly mammoth – anon – This seems like a really bad idea. One lonely orphan mammoth… Fortunately, it also seems highly unlikely.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Atlantic: In Focus – The Year in Volcanic Activity – Alan Taylor – 36 astonishing photographs of volcanoes and their works done in 2011; a good reminder of the pettiness of most of our complaints and projects.

Vanity Fair – Does Airport Security Really Make Us Safer? – Charles C. Mann – "As you stand in endless lines this holiday season, here’s a comforting thought: all those security measures accomplish nothing, at enormous cost. That’s the conclusion of Charles C. Mann, who put the T.S.A. to the test with the help of one of America’s top security experts."

Wired Magazine – The Curse of Cow Clicker: How a Cheeky Satire Became a Videogame Hit – Jason Tanz – "It’s a Facebook game called Cow Clicker, and it’s unlike anything Bogost ever made before, a borderline-evil piece of work that was intended to embody the worst aspects of the modern gaming industry. He meant Cow Clicker to be a satire with a short shelf life. Instead, it enslaved him and many of its players…"

History Today – Dickens and the Construction of Christmas – Geoffrey Rowell – History Today brings back a piece from 1993, a fascinating look at the ways in which the English have—and have not—celebrated Christmas over the years, and, of course, of the profound influence of Dickens's A Christmas Carol.

Together For Jackson County Kids – One teacher's approach to preventing gender bullying in a classroom – Melissa Bollow Tempel – Dealing with the tricky and socially fundamental issue of gender in a first grade classroom.

YouTube – The dolphin jetpack that lets you swim like one – Jeremy Barnes – If your Christmas list hasn't yet been sent to Santa, you might want to include one of these. Franky Zapata, a French jet skier, demonstrates a device that will run Santa about €5,000.

iPolitics.ca – How Winnipeg slashed its auto theft rate and what the rest of Canada can learn – Rick Linden – A brief piece on the success Winnipeg has had with its "Auto Theft Suppression Strategy" of "targeted deterrence."

YouTube – Umberto Eco on The Prague Cemetery, Part 1 – Umberto Eco – The famous semiotician and novelist (who ignored his father's advice to become a lawyer) talks with CBC's Michael Enright at the Toronto Public Library about his most recent book. Note that this is only Part 1—keep your eyes open for Part 2. Note too that he opens with a discourse on why he once said that Apple was Catholic and PC was Protestant.

FT Magazine – Who runs Russia? – Charles Clover – A profoundly depressing examination of the mafia culture in the world's largest country.

Mental Floss – 11 Sounds That Your Kids Have Probably Never Heard – Kara Kovalchik – A series of very short videos that feature the noise of nostalgia for those d'un certain âge.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Cracked.com – 7 Brilliant Movie Lawyers (Who Suck at Their Job) – Chris Radomile – Only 7? Surely our readers can come up with another bunch to bulk up the list. This critique goes into some detail about specific mis-lawyering points in the flicks.

New York Times – Can Game Theory Predict When Iran Will Get the Bomb? – Clive Thompson – A piece about the NYU prof and game theorist, the wonderfully named Bruce Bueno de Mesquita, who for decades has been developing a computer program "that predicts the outcome of any situation in which parties can be described as trying to persuade or coerce one another." Sounds like something that could be useful in law.

Businessweek – Correlation or Causation? – Vali Chandrasekaran – Amusing charts aligning the development of unlikely pairs of phenomena. E.g. "Is Facebook driving the Greek debt crisis?"

Smithsonian Magazine – Scandinavians’ Strange Holiday Lutefisk Tradition – Erica Janik – "Lye-soaked cod drenched in melted butter." Much as I like me a good piece of cod, I'd have to go with the Scandinavian gravlax tradition by preference.

The Guardian – Why I pulled out of the TS Eliot poetry prize – Alice Oswald – The poet (see her "Sonnet" here) talks about the purpose of poetry and the unsuitability, for her, of hedge funds as sponsors. (Fascinating, for me, to see the hostility in the comments. For a more reasoned critique, see The Economist—unsurprisingly.)

NPR – Extra Virginity: The Sublime And Scandalous World Of Olive Oil – Tom Mueller – An extract from his recent book on "olive oil and olive oil fraud, a story of globalization, deception, and crime in the food industry from ancient times to the present, and a powerful indictment of today's lax protections against fake and even toxic food products…"

YouTube – The Sloths Are Coming – SlothvilleTV – "Trailer for upcoming documentary filmed at the world's only sloth orphanage in Costa Rica." Serious cuteness warning.

Slate Magazine – Recipe cards: a brief history – Katie Arnold-Ratliff – A pleasantly nostalgic piece that tracks very much the same kind of change that library catalogues and cards went through. Slate is collecting scans of your grandmother's recipe cards, if you're interested.

New York Times Opinionator – Of Hume and Bondage – Simon Blackburn – I'd present this for the title alone, almost. But if you're at all interested in philosophy, which is to say in the affairs of life, this defence of Hume makes for worthwhile reading.

Vimeo – HDR skies – Tanguy Louvigny – Colours and contrasts pushed madly, making for very dramatic time-lapse vistas. (I like the way that the tiny cows and sheep dart around in the distance.)

The public library is a wonderful spot for information, entertainment, socializing, technology, education and more. Have you ever wondered about the actual value of your library to you? Perhaps impossible to translate into dollars and cents, however I recommend you try the library use value calculator to see how much it predicts you would be paying out -of-pocket for your library services. It would be interesting to see a similar calculator for law libraries.

Ann Cavoukian – the Ontario Privacy Commissioner – has written an excellent op-ed in the Financial Post entitled Beware of 'Surveillance by Design'. 

It starts off with:

I feel the need to raise a growing concern regarding the lack of understanding of a key privacy issue – the ease of data linkages in an ever-increasing online world.

In this day and age of 24/7 online expanded connectivity and immediate access to digitized information, new analytic tools and algorithms now make it possible, not only to link a number with a name, but also to combine information from multiple sources, ultimately creating an accurate profile of a personally identifiable individual.

The Commissioner weighs in on the controversial Alberta Leon's case that decided license plates are not personal information – which differs from other provinces.

She also expresses her concerns about the pending federal "lawful access" laws, saying that:

In my view, this represents a looming system of “surveillance by design,” that should concern us all in a free and democratic society.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Guardian – An A-Z of winter food – Jenny McIvor, Bob Granleese, Matthew Fort, Hannah Booth – Just as it says: Twenty-six suggestions with recipes for the comfort food needed to take us through the coming months of cold, cold, cold. A marked absence of salads, I warn you.

Salon.com – Twitter takes sides on the Internet’s future – Nancy Scola – Everybody's favourite internet sillyname buys software that can let users make encrypted voice calls. From tweets into full-throated warble—and garbled warble at that?

malcolmgladwellbookgenerator.com/ – The Malcolm Gladwell Book Generator – Cory and Brett – Wicked and funny: hit the "Generate New Best Seller" button and see how everyday matters can be inflated to matter. (Under fairly heavy internet pressure, so it may be slow in loading.)

Statistics Canada – Average area covered by total (all) sea ice during summer from 1968 to 2010 for sea ice regions of Arctic Domain – EnviroStats – See how clear the trends are in all of Canada's arctic regions: down, down, down at something like 7 or 8 percent a decade.

shirky.com – Institutions, Confidence, and the News Crisis – Clay Shirky – He critiques a piece in the Columbia Journalism Review by Dean Starkman that challenges what he calls the "future of news" movement and advocates "rebuilding or shoring up institutions." Starky argues that it's well past time for most news institutions to be working on Plan B.

Boing Boing – World's Smallest V-12 Engine – Cory Doctorow – "In this video, Patelo hand-machines all the parts for 'the world's smallest' V-12 engine, then assembles it and runs it. It's a remarkable feat of machining and engineering…"

The New Yorker – Crush Point: When large crowds assemble, is there a way to keep them safe? – John Seabrook – The behaviour of crowds has been a subject of inquiry for well over a hundred years now, and still we read of people killed in stampedes of human animals. This article focuses on crowd expert Paul Wertheimer and his role in the Wal-Mart crowd death case.

UC Berkeley School of Information – Too Big to Know: How the New Dimensions of Information Are Transforming Business — and Life – David Weinberger – A lecture by the author and senior researcher at Harvard’s Berkman Center: "In the new knowledge ecology, knowledge takes on the properties of its new medium, the Net. That means knowledge has become huge, it's connected, and it embraces disagreement and differences. The key is to think about knowledge not as a set of content but as a network: the smartest person in the room is now the room itself. Then the question is, how can you build, maintain, and nurture a smart network?"

Rands in Repose – A Bag of Holding – Michael Lopp – A geek sets out his requirements for the perfect bag and explores some options. The comments join in with some really decent suggestions.

hungoverowls.tumblr.com/ – Hungover Owls – J. Patrick Brown – Yes, well. Silly for sure, but why not. And there is something humanoid about owls—and silly about hangovers, come to think of it.

For authors on SLAW, you know that in today's world, obtaining a publishing agreement with a traditional publisher means that you have to show your publisher how YOU will market and promote your own book. Those authors with a broad reach will of course be more attractive to a publisher. By the time you contact a publisher, you likely have some blog postings and perhaps print articles on your CV, but how about Twitter, Facebook, LinkedIn and other online marketing tools? What to do and where to do them? And a biggie – how much time to spend marketing rather than writing and perhaps making a living! I recommend all authors (and others interested in online marketing and publicity) take a look at the Wiley Author's Guide to Online Marketing & Publicity.

At the most recent Osgoode Society book launch, Roy McMurtry encouraged those present to review the full array of back list titles published by the Society that were on display. Included among them was an earlier book by Robert J. Sharpe – The Last Day, The Last Hour: The Currie Libel Trial. Originally published by The Carswell Company Limited in 1988, it was subsequently republished in paperback for the Osgoode Society by the University of Toronto Press.

I recently stumbled across an early review of the Osgoode Society best seller that appeared in the July/August 1989 issue of CLIC's Legal Materials Letter, a long defunct publication, that was for more than a decade the only independant survey of new publications on Canadian legal topics. The review was written by William Crawford, the Editor at the time.

In the belief that readers will find the book is just as interesting as it was when it was first published, I have selected a few paragraphs from the review that may provide an understanding of what the book has to offer. In the words of Crawford,

This book is an account of the 1928 libel trial which pitted Sir Arthur Currie, then principal of McGill University and in 1918 the Commander of the Canadian Corps, against W.T.R. Preston, editor of the Port Hope Evening Guide, and its owner /publisher, Frederick W. Wilson. The libel arose from a front page, unsigned editorial published in the Evening Guide in June of 1927. The editorial claimed that the Canadian commander had made a push to capture Mons on the last day and at the last hour of the war to have the glory of avenging the British loss of the town in 1914. It called this push one of the most deliberate and useless wastes of human life in the whole of the war.

In making these charges Preston and Wilson were repeating rumours among veterans and charges made by Sir Sam Hughes, a Currie foe, in the privileged forum of Parliament.Currie saw the libel action as the only way to clear his name after the incident, so he sued.

William Crawford continues with his assessment of what the author attempted and what the author achieved in writing the book.

The trial is a great trial, and the cast of characters really is wonderful, and the delight is that so much of what they say is drawn from the trial transcript, Hansard, letters and diaries, so that we really do have the participants" word on it.

For while this book is a carefully footnoted work of admirable scholarship, it is also organized to climax as dramatically as the trial climaxed, with Preston's belligerent examination of Currie on the witness stand. This chapter is constructed largely from the deftly edited transcript of the court record. Sharpe's method is to set the stage and then stand back and let the characters confront each other again across the gulf of time.

To paraphrase Crawford's conclusion, this book is a dramatic account of a great Canadian trial, written almost as if it were fiction, with a wonderful cast of characters, by an author with a passion for his subject.

My suggestion, if you haven't already done so, is to check it out. The Last Day, The Last Hour is a good read and a valuable contribution to Canada's legal, political and military history. You will like it.

N.B. The author of this post was Executive Editor at Carswell at the time the book was originally published.

The Attorney General for England and Wales, Dominic Grieve gave a very interesting speech on December 1 entitled 'Contempt – A Balancing Act: balancing the freedom of the press with the fair administration of justice' to journalism students where he commented on his approach to contempt of court.

'Citizen journalists' should not think they are immune to the law of contempt, that there is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. While he accepts the danger posed to the administration of Justice by many bloggers is minimal, he say that we should not underestimate the potential for a blog or tweet to go viral.

We have seen in recent years not only the rise of social media but also the blog and the citizen journalist. Unlike major news organisations, which on the whole act in a responsible and measured manner, the inhabitants of the internet often feel themselves to be unconstrained by the laws of the land. There is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. This is mistaken.

Whilst I accept the danger posed to the administration of Justice by many bloggers is minimal, we should not underestimate the potential for a blog or tweet to go viral. As incautious city bankers and brides to be have discovered to their cost, comments on the web can soon be published far beyond their original, limited audience. And I use the word published advisedly, as publication is of course the phrase used within the Contempt of Court Act – an online article which breaches the strict liability rule runs the risk of running afoul of the law of contempt.

……………………..

The last case which I would like to mention involves something with which I suspect many of you are very familiar – Facebook.

A defendant in a trial had been acquitted of the charges she faced but the jury continued to consider their verdicts regarding her co-defendants. The night of her acquittal, one of the jury decided to go online and chat on Facebook.

Unfortunately she chose to track down the acquitted defendant on Facebook and proceeded to let her know her thoughts on the trial and the ongoing debate in the jury room. Knowledge of jury discussions is forbidden to all outside the jury. It is an offence under the Contempt of Court Act 1981 to 'obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings'

In this case the juror and the former defendant engaged in a Facebook chat about what was happening in the jury room. Their conduct came to the attention of the Judge and eventually to me. Again, in my Public Guardian role, proceedings for this type of contempt of court cannot be instituted save by or with my consent or on the motion of a court having jurisdiction to deal with it. I concluded a contempt had been committed.

The juror admitted her contempt and was committed to prison for 8 months. The former defendant denied wrongdoing but, after a brief trial, was found also to be in contempt – she too was committed for 2 months, although in her case the order was suspended for 2 years as she had been on remand for some months before the trial of the original matter.

The case highlighted important principles and again that the internet does not provide some form of immunity from prosecution. Jurors must feel able to openly express their views and opinions to their fellow jurors without fear that they will be subjected to public exposure and possible ridicule or disgust. This prevents juries from being inhibited as they discuss the merits of the evidence which they have heard. It is essential that the sanctity of the jury room is preserved.

The revolution in methods of communication cannot change what the Lord Chief Justice has termed 'essential principles' and that is why contempt proceedings will be brought by me when required.

Here is the Evening Standard's take, the Guardian, and the Daily Telegraph.

This isn't just about speech making. Last week, he applied to the High Court for permission to bring contempt proceedings against Theodora Dallas, a juror in a trial at Luton Crown Court. Ms Dallas was told by the trial judge not to conduct research on the internet. The case she was trying, which involved three defendants charged with causing grievous bodily harm, was discharged and a retrial ordered. Apparently, she deliberately looked up information about one of the defendants, a court was told last week.

As the Telegraph reports, Louis Mably, counsel for the Attorney-General, said: “Next day, when the jury retired, she informed other members of the jury. Her conduct was reported to the court and the judge discharged Ms Dallas and the remaining jurors.”

The Telegraph also reports on an interview which is behind the Times' firewall:

In an interview with The Times Mr Grieve admitted the internet did present challenges but it was only a “lawless territory” to the extent that it made enforcing contempt laws more difficult if “people post things on the net abroad”.

He also dismissed “tittle-tattle on Twitter” as necessarily posing a problem to enforcing the contempt laws.

“Ultimately, no one thought that the contempt of court rules, even before 1981, would prevent dinner party tittle-tattle and nor should we necessarily get too exercised about that,” he said.

He added, however, that if comments went “viral” and were “reached by thousands or millions of people accessing a particular site or blog then of course we are going to be exercised about it”.

Mr Grieve said: “Judges have been given directions to jurors for a long time not to discuss cases with those who are outside the jury room. We know that long before the internet some failed in their duty occasionally and were punished for it.”

I am unaware of any of the Canadian Law Officers of the Crown having spent this much time thinking about these issues.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

CBC Radio 2 Concerts on Demand – Edmonton Folk Festival – kd lang and the Siss Boom Bang – More than a dozen songs from a live performance by this great Canadian singer.

The New York Review of Books – What Really Happened to Strauss-Kahn? – Edward Jay Epstein – This is a very detailed, very careful exposition of one of the astonishing events of the year. It's more complicated by far than I, at least, had imagined.

Internet Archive – The Spring-Man and the SS (1945) – Jiri Trnka – Look! Up in the sky! It's a bird. It's a plane. It's… Springman! A fascinating WWII animated film from Czechoslovakia featuring a chimney sweep with springs on his feet who mocks and frustrates the Nazi occupiers.

The Modern World – Eternal Fascism: Fourteen Ways of Looking at a Blackshirt – Umberto Eco – Speaking of fascists, here's an Eco piece from 1995 that, in his typical fashion, is a mix of humour, profundity, and muddle.

BERG Cloud – Announcing Little Printer and BERG Cloud – Everything old is new again. And now it's printing. This undeniably cute little box will offer us printed paper strips to tuck under our toast at breakfast or magnet to the fridge. And it promises to fetch what you want without your having to tell it.

NYTimes.com – Fliers Still Must Turn Off Devices, but It's Not Clear Why – Nick Bilton – Yes, what is Airplane Mode for? I sense a revolt in the offing. Already things are fraying at the edges—we see you checking your messages before the wheels have even touched the ground.

The New Yorker – Pre-Occupied: The origins and future of Occupy Wall Street – Mattathias Schwartz – An interesting piece about Kalle Lasn, the Canadian behind Adbusters and seemingly the originator of the OWS idea.

Dartmouth University – photoretouching – Prof. Hany Farid – As the piece in the NYTimes explains, Farid is working on software that might help us figure out which images have been photoshopped. The piece I'm showing you is a graphic of celebs shots "after" and "before" they were touched up by Photoshop.

The 2011 Gordon Osbaldeston Lecture – A Short History of the Erosion of Trust – Allan R. Gregg – From inauthenticity to an essay on it: Gregg's target, though, is politics: "So even if we are now less deferential to our traditional leaders, and more efficacious and cynical as individuals, it may also be that this cultural shift has rendered us more insecure and vulnerable to the larger uncertainties that we cannot control through technology and social media."

Broadbent Institute – The Social Democracy of Canadian Federalism – Tom Kent – A recent piece in the Toronto Star, "How to revive Canada’s dream of social democracy," on the occasion of Kent's death this month pointed me to this article, written by Kent at the age of 89. For the impatient, the Star condenses the Kent paper.

This is a post in a series now appearing regularly on Fridays, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Guardian – A portrait of Mary Peebles – Alexander McCall Smith – A fascinating, too brief tale by the author of the No. 1 Ladies Detective Agency series about Mary Peebles, the body double for Mary Stuart, Queen of Scots.

Rolling Stone – Show Me The Place – Leonard Cohen – Listen to a song off Cohen's new albumn, Old Ideas, not due out until January 31. This is an overtly religious, I'd say Christian, piece. The guy still can't sing, only more so now. But…

The Economist / Johnson – Swearing in Quebec: If you profane something no one holds sacred, does it make a swear? – M.D. – Staying with Quebec and religion, the author here muses about that province's choice of profanity over obscenity when it comes to swearing.

The Globe and Mail – Canada, like Steve Jobs, should zero in on innovation – Roger Martin – If only. The dean of the Rotman School of Management makes a plea for "something unique that is in keeping with a century that is going to be more about innovation than we have ever seen."

xkcd – Money – xkcd is "a webcomic of romance, sarcasm, math, and language," a site you should get to know. But this huge graphic is no comic: it's a chart that looks at what money can buy starting with hundreds and ending four fantastically detailed sections later with trillions.

The Atlantic – Why I Feel Bad for the Pepper-Spraying Policeman, Lt. John Pike – Alexis Madrigal – As most of the world knows by now, Lt. Pike used pepper spray on the faces of sitting student protesters at the University of California, Davis. This is a serious and informative look at the different strategies used by police since the '60s when confronting protests.

International Herald Tribune – The Umbrella Man – Errol Morris – I hadn't known, but apparently in the Zapruder film of John Kennedy's assassination, and in other still photographs of the event, there's a man in the crowd standing under an open umbrella—on a cloudless hot day in Dallas. This brief video uncovers what that was all about and in so doing, deprives conspiracy theorists of some pleasure.

FT Magazine – The forger’s story – John Gapper – This is a lovely, long piece on Mark Landis, art forger. And everyone loves the story of a successful forger, no? (Why is that, I wonder?)

Brain Pickings – How Darwin’s Photos of Human Expressions Changed Visual Culture – Maria Popova – This review of a book by Phillip Prodger, Darwin's Camera, contains some wonderful photographs by art photographer Oscar Rejlander, the man hired by Darwin to capture shots of human emotions.

worrydream.com – A Brief Rant on the Future of Interaction Design – Bret Victor – And what would this set of diversions be without a good rant to send you on your way all gingered up? Victor is not happy with the feel you get when you work your iPad, a technology he calls "pictures under glass" and asks why it's the star in every vision of the future. Hands were meant for more than "slip sliding away."

The Pennsylvania Bar Association’s Committee On Legal Ethics And Professional Responsibility has just released Formal Opinion 2011-200, Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property

As the PA Bar keeps its Ethics Opinions behind a member wall, I’ve attached a copy of it to this post. One of the Committee members has told me I am free to distribute it.

This Opinion indicates that lawyers may ethically allow client confidential material to be stored in “the cloud” provided the lawyer takes reasonable care to assure that (1) all such materials remain confidential, and (2) reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks.

Clearly, a lot of time and thought was put into the drafting of this Opinion. There is good background information on the issues and concerns that come up when client information in stored the cloud and when web-based mail services are used. There is also a summary listing of the ethics opinions in this issue from the ABA and other states and entities.

This Opinion considers both the practical and technology-related issues that are raised when lawyers use cloud-based services. While this Opinion is specific to PA Bar Rules of Professional Conduct, lawyers in other jurisdictions will find the information on what care and steps would be considered “reasonable” helpful in directing their own actions. It is nice to see there is a strong emphasis on lawyers being ultimately responsible for making informed decisions about the benefits and risks of placing client data in the cloud. The storing of client data can be outsourced, but the responsibility for making sure it is safe and secure remains with the lawyer.

A recent working paper by Mark K. Osbeck of the University of Michigan Law School, proposes a framework for understanding, and teaching, good legal writing.

Available via SSRN, What is "Good Legal Writing" and Why Does it Matter?, the paper provides an overview of the major reports and other documents that have called for increased attention in US law schools to practical "lawyering" skills, starting with the MacCrate Report of 1992. It then provides a conceptual framework for defining good legal writing, and a detailed discussion of its various elements:

[The paper] argues that legal readers judge a document to be well-written if the writing helps them make the decisions they need to make in the course of their professional duties. The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: clarity, conciseness, and the ability to appropriately engage the reader. The article explains why each of these qualities is essential to good legal writing, and it examines the tools good writers use to make their writing clear, concise, and engaging. Lastly, the article examines what it is that distinguishes the very best writing in the field, arguing that great legal writing is not just writing that is especially clear, concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is aesthetic in nature. (abstract, p.2)

I like the emphasis on meeting the purposes of the readers of the document, because, though it may be a somewhat narrow, even idealized, view of the purposes of legal writing, it is at least a starting place that recognizes the connection between legal writing and legal reading. The development of expert legal writing and legal reading skills go hand in hand, as the writer summarizes:

[Writers] become proficient at writing primarily by reading the works of good writers and by practicing their own writing. Focusing students on the fundamental goals of legal writing (i.e., clarity, conciseness, and engagement) while at the same time exposing them to examples of excellent writing allows students to analyze for themselves the tools masters of the craft employ to achieve these fundamental goals.(p. 66)

I was alerted to this article by subscribing to SSRN's Law & Rhetoric eJournal, available to subscribers.

This is a post in a series that is by now regular, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Carl Warner Photographer – Foodscapes – Carl Warner – Don't play with your food, you were told. Carl's mum clearly failed in this respect. He's built landscapes entirely out of food and then photographed them. (On his website, click on the second square to be taken to the foodscape images. There's also an NPR piece about him and his work.)

Brain Pickings – Choosing to Die: Sir Terry Pratchett Comes to Terms with His Death – Maria Popova – The fantasy author, afflicted with early onset Alzheimer's, talks in an hour-long video about choosing to die and arranging for it in Switzerland. Sad but timely, perhaps, given the legal case begun in BC.

The Guardian – Rebecca Coriam: lost at sea – Jon Ronson – "When Rebecca Coriam vanished from the Disney Wonder in March, hers became one of the 171 mysterious cruise ship disappearances in the past decade. So what happened? Jon Ronson booked himself a cabin to find out…"

Nasa, ISS on Vimeo – Earth | Time Lapse View from Space | Fly Over – Michael König editor – Enough death. Now for something quite majestic: five minutes of watching the world go by – from a viewpoint that's extraordinary.

Food Politics – Ketchup is a vegetable? Again? – Marion Nestle – This will make you laugh, albeit hysterically perhaps—if it doesn't make you cry.

Jennifer Egan's Website – A Visit from the Goon Squad: Great Rock and Roll Pauses – Jennifer Egan – This is a chapter from Egan's novel done as a PowerPoint slide show. It's a bit on the difficult-to-follow side, but once you get into it, you may find it a change from all the PP slideshows that have been driven against your eyeballs over the years.

Slate Magazine – The New Classics: The most enduring books, shows, movies, and ideas since 2000 – Slate Staff – Slate's seeking your input. But until that arrives, the staff have proposed some works that "will speak to future eras." It's not at all hard to find fault with their choices—which is the point, I suppose. I mean, "The Black eyed Peas"?!

The Chronicle of Higher Education – I Will Never Be a Ranter – Geoffrey Pullum – A good rant's a wonderful thing: all that high talk in full flight—like rockets or a hailstorm. But not everyone's capable of it. Pullum, one of the authors of the Lingua Franca column, claims that he's not qualified, having read Ambrose Bierce's "utterly assassinative prose" about Oscar Wilde, three whopping paragraphs of which he presents as proof.

The Smithsonian – How the Potato Changed the World – Charles C. Mann – First it was carrots (you may remember) and now it's potatoes, as we work our way through the humble veg among us.

NPR – The 'Worm' That Could Bring Down The Internet – A 43 minute interview with Mark Bowden, whose book, "Worm –
The First Digital World War", frightens us about the worm, Conficker, that's currently assembling massive botnets.

David S. Caudill, "Lawyers Judging Experts: Oversimplifying Science and Undervaluing Advocacy to Construct an Ethical Duty" (2011) 38 Pepperdine Law Review 674

Electronic copy available at: http://ssrn.com/abstract=1874947

The fact that judges, typically untrained in science, need to “resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise,” a “daunting task,” seems to suggest that lawyers could too. But judges do not always agree on the admissibility of expertise, and discerning reliability has proved to be controversial. To expect attorneys—and this is what the proponents of a duty to vet experts expect—to do sufficient scientific research to create their own reliability controversy, make a determination as to the ultimate reliability of their own experts, and face ethical sanctions if they err is going too far. While it is easy to choose examples that support a compelling argument for a responsibility to vet experts, the complexity of the scientific enterprise, in terms of its diverse methodologies, probabilistic conclusions, and genuine scientific disagreements, counsels against a broad, new ethical duty. Indeed, some of the arguments for that new duty seem to rest on unrealistic assumptions about science and the ease with which reliability determinations can be made. Moreover, a broad duty to vet experts would represent a serious and problematic departure from the lawyer’s role as an advocate. “ (676-677)

…..

The real problem with the proposed duty to vet expertise is the proposition that attorneys should come to a good faith belief in validity. What if I am uncertain, that is, I am not really sure if my expert physician’s opinion or the other side’s epidemiologic evidence is correct? Is that uncertainty a failure to come to a good faith belief in validity or a justifiable uncertainty arising out of a scientific controversy? One could tell me to go back to the literature to settle the controversy. But the attorney’s role as an advocate, notwithstanding its limitations in terms of duties of candor to the court, should remain particularly distinct from the judge’s and jury’s role in resolving such disputes. When Saks said that it “is hard to think of principled reasons why an attorney should not be obligated to acquire a good faith basis for believing” that proffered expertise is valid, the reasons that he missed were the complexity of a lot of courtroom expertise and the advocate’s traditional role in our adversary system. (707-08)

( Footnotes omitted in each except)

Libraries, and especially public libraries, are routinely an early target of budget cutting initiatives. It seems HR pros and other administrative types typically have not personally experienced how valuable sustained contact with high quality reading material is.

Where closing libraries is unpalatable, Librarians are fired. After all, the common perception of librarians is that "Librarians check out books. They read a lot. They tell people to be quiet."

But libraries can't run themselves, and more crucially, Librarians teach, by example and by the collections they build, how to detect BS. And lawyers, having spent a lot of time reading critically, know that there is a lot of BS out there.

That function is core to the work of the most underrated of all librarians: the school librarian. But where else do 6-year-olds begin to understand that, quite literally, you are what you read? Garbage in, garbage out, people.

Here's a good, 'elementary' example of that kind of service. The selection function, which depends on excellent and current knowledge of the available materials and the needs of the library clientele, flies under the radar. Nevertheless, it continues though all levels of education, and into the professional world, where institutions like the LAC can, or could, provide the highest levels of expert curatorial and reference service. As long as there are capable professionals on staff.

Here's what Ian E. Wilson, one of Canada's best, and former head of the LAC, had to say on the topic of selecting materials and offering access to information back in 2000:

In a world where every second person is now called a knowledge worker, archivists have been quietly plying the "KM" trade for hundreds, even thousands, of years. Using his or her professional skills and knowledge of the creation and use of records, the archivist sifts through mountains of information, identifying and linking those records containing information and knowledge which have value for the future [...]

A management consultant colleague once likened the archival selection process to that of an oil refinery, which transforms a rather useless material into a variety of valuable products. I myself think a distillery may offer an even better analogy. We take raw, natural ingredients — some of it corn and some of it rather wry– and produce a fine, flavourful, and fully aged product. Like other such products, it has strong medicinal benefits, and is guaranteed to rejuvenate memory if stored carefully and used liberally.

Ian E. Wilson, "Information, Knowledge, and the Role of Archives" 25 (1) Canadian Journal of Information and Library Science 19 at 19.

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Awl – A Conspiracy of Hogs: The McRib as Arbitrage – Willy Staley – A fairly serious piece using the price of hogs to explain why this "mockery… of barbeque" comes and goes in the US market the way it does.

The Guardian – Book Review: PG Wodehouse: a life in letters – Sophie Ratcliffe – What ho! The reviewer reminds us of the endearing (and clever) aspects of the writing of the creator of Jeeves and Wooster, and touches as well on some of the less endearing parts of the master's life.

NYTimes.com – Arvo Pärt, the Sound of Spirit – Arthur Lubow – A gentle mini-biography of this most popular composer of serious music and an overview of his oeuvre. As there should be in a web-based piece about music, there are excerpts from four of Pärt's best-known works you can listen to.

Popular Mechanics – 10 Roads to the End of the Earth – Phil Berg – Proud to say that Canada's ice road to Tuktoyaktuk made the number one spot in this slideshow and survey of many miles of bad road.

Design Observer – Above Grade: On the High Line – Phillip Lopate – From ten bad roads to one great route: the elevated parkway that runs for a mile and a half above Manhattan. Delightful.

Dwell – Floating House, Lake Huron – Alex Bozikovic – Memories of summer. A slideshow of a lovely cottage sited in one of the countries loveliest bodies of water, Georgian Bay.

Wired – One Millionth Tower – Katerina Cizek, Mike Robbins – Since we're ricocheting, we might as well bounce from that upper-middleclass haven to a much grittier set of dwellings as portrayed in this innovative online documentary from the National Film Board and premiered on Wired. Be aware that you can only watch this on Firefox, as it takes advantage of certain features build in to that browser. (It was time to switch from IE anyway.)

Europa Film Treasures – Der Luftkrieg der Zukunft – 1909 (The Airship Destroyer) – Walter R. Booth – And so from the latest technology to some pretty adventurous stuff from more than a hundred years ago. Not only does Booth anticipate air warfare in this six minute film but the future of film as well in many respects. (You may wish to turn off the added music soundtrack.)

The Economist – Fear of flying: Welcome aboard – (unsigned) – An oldie but a goodie: here's what in flight announcements might say if they were really truthful.

Vimeo – Murmuration – Sophie Windsor Clive – You've seen them, these massive gatherings of starlings that swoop and wheel as if one organism. Well Clive and a friend happened to have a camera with them, so now you can watch at your leisure as flocking does its thing. ("Murmuration" by the way is the collective noun for starlings.)

Over at the Small Firm Innovation blog there's been a number of terrific posts with some of the legal industry's top minds sharing their thoughts on time management.

Niki Black kicks the discussion off with a discussion of how the just-released iPhone 4S's digital assistant Siri can be used to more efficiently manage our time. Niki describes how Siri's voice recognition facilities not only allow iPhone 4S users to efficiently and easily create appointments, tasks to help with managing their time, but how they can save time by dictating these items while we would otherwise be unproductive (such as while commuting).

Chad Burton picks up this line of thinking with a description of how he manages his time using some old-school tricks, such as dictation, to help make the most of his time. By combining new technologies like cloud computing with "old school" technologies like dictation, Chad is able to get work done anywhere, anytime.

Jared Correia describes time management as a variant of task management in "Two Tiers in a Bucket: Time Management on Lock Down." Jared puts a novel metaphor at work by viewing tasks as boats moving through a canal lock system – by relentlessly reviewing and advancing tasks through this staged system, we will be able to keep on top of (and keep advancing) our most important tasks.

Donna Seyle shares her Top 10 tips on time management in "How to Manage Not to Waste Your Time" – importantly, Donna points out that implementing these time management techniques take time. In what will become a paradoxical non-starter to some, we need to budget time to implement time management practices.

Meanwhile, Carolyn Elefant, in a post titled "Got No Time for Time Management" outlines her skepticism of time management practices in general. So-called time management consultants try to sell us a utopia where we go home at 5 PM sharp with everything on our to-do list crossed off, but the realities of the modern workday make this an impossible (and maybe even an undesirable?) end-game.

What are your thoughts on time management? Let me know about your own tips and tricks in the comments.

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Kickstarter – Willard Asylum Suitcase Documentation – Jon Crispin – The photographer in this video describes his project, which is to photograph suitcases found in the attic of what was once New York State's Willard Psychiatric Center that had been deposited between 1910 and the 1960s when their owners were admitted to the facility.

The Grid TO – Down the rabbit hole – Sheila Heti – "Back in the 1980s, the hottest ticket in town for kids was an invite to The Mad Hatter, a birthday-party centre owned by future real-estate tycoon Harry Stinson. Former partygoers and Stinson himself reflect on the wildest haunt this city’s ever seen."

The Chronicle of Higher Education – Losing It in the Golden Groves – William Ian Miller – "The lament of an aging professor" who feels it slipping away as he worries about brain shrinkage.

NeuroTribes — What Kind of Buddhist was Steve Jobs, Really? – Steve Silberman – Hmm. Turns out both Jobs and I read "Zen Mind, Beginner's Mind" way back in the old days: so how come I'm not rich? This piece offers an interesting interplay between Buddhism and Jobs's work at Apple.

garytaxali.com – New Work – Gary Taxali – 25 slides of this cartoonist's work. His retro-style drawings have graced the pages of many American magazines (including the ABA Journal, for what it's worth).

BBC News – How the Joy of Sex was illustrated – Cordelia Hebblethwaite – "Forty years ago, a London publisher was working on a groundbreaking sex manual – a "gourmet guide" to sexual pleasure, with copious and detailed illustrations. But how could this be done tastefully and legally?" The illustrator, Chris Foss, tells all in this video and the accompanying article.

IEEE Spectrum – Engineering the 10 000-Year Clock – David Kushner – "A monument-size mechanical clock designed to measure time for 10 millennia." As the creators say in the article, it's not easy to make something designed to last for just shy of forever—and to get people now to care about it.

The Atlantic – Bangkok Underwater – Alan Taylor – Very beautiful photographs of a very unfortunate situation, that's only gotten worse since these shots were taken. I find something distressing about the gorgeous depiction of trauma.

Big Way Photography – California state record for number of skydivers – You'll need to agree to the site's terms before you're allowed to look at this video, but it's worth it. This is a spectacular event done simply for the sake of spectacle.

The Observer – How cognitive illusions blind us to reason – Daniel Kahneman – The author of Thinking Fast and Slow talks, in this extract, about how our settled ways of thinking trip us up (… and let us believe it's okay to jump out of airplanes?).

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Orion Magazine – Deep Intellect: Inside the mind of the octopus – Sy Montgomery – Another compelling piece on the smart cephalopod. Hard to know how to know if it really… knows.

Emma and Charlie's Radio Podcast – Wikipedia Daily Challenge – Simple concept: they hit "random" on Wikipedia and then take 90 minutes to record a song about what turns up. Currently there are 22 on offer. All in all, quite impressive.

The New Yorker – Tenth of December – George Saunders – A short story: winter, ice, cold… you know.

Wine Review Online – England: The Next Champagne? – Tina Caputo – Blighty bubbly? Apparently it is not to laugh. But it sounds as though you'll have to be there to give it a try.

New York Times – Murakami’s Tokyo – Sam Anderson – This is a series of brief recorded pieces by the writer, describing his attempt to find the Tokyo imagined as a result of reading the novelist Murakami (in translation).

Slate – Traces of Life: How Sherlock Holmes helped crack the case of a missing father – James Hughes – "A case of clutter and grief." A man loses his father to death and hunts through what remains for clues as to who he was.

CBC Radio Quirks and Quarks – Sleeping with Neanderthals – Alanna Mitchell – A portion from a recent broadcast in which Mitchell explores the science of inter-species human breeding and its implications. [See also an accompanying print story.]

Retronaut – Evolution Of Madonna Magazine Covers, 1983-2011 – Robert Loch – 29 photos of Madonna Louise Veronica Ciccone on covers of every single important US magazine. It's one hell of an impressive biography, really.

The Boston Globe – On the menu, but not on your plate – Jenn Abelson and Beth Daley – The (other) Globe does some investigative reporting and finds that the catch of the day isn't always, or even usually, what it purports to be. Though this is a Boston fish story, I'd be surprised if we're not defrauded in the same way here.

The Annenberg Space for Photography: IRIS Nights Lecture Series – Goddess: An Exploration of the Divine and the Secular Forms of Beauty – Leonard Nimoy – Turns out that Shatner's straight man wields a mean camera. He talks about discovering and loving photography in this video.

The Osgoode Society for Canadian Legal History held a book launch in Convocation Hall yesterday evening. Four new titles were added to the Society's roster of over eighty titles published since the Society was launched in 1979.

The annual event was presided over by its founder and president, Roy McMurtry. It was attended by numerous legal luminaries with an interest in legal history, including most notably Andromache Karakatsanis, the newly appointed Justice of the Supreme Court of Canada. Legal history really does have cachet after all.

As in previous years, the Osgoode Society continues to demonstrate its interest in a wide range of subjects that form a part of legal history – a late nineteenth century murder case in Prince Edward County, an everyday lawyer's practice in the first half of the nineteenth century, the stories of judges from the colonies who were suspended or removed from office for political reasons, and the operation of the criminal justice system in the west from 1886 to 1940.

The List for 2011

The Lazier Murder: Prince Edward County, 1884
by Robert J. Sharpe, Justice of the Court of Appeal for Ontario.
Published for the Osgoode Society by the University of Toronto Press.

In December 1883, Peter Lazier was shot in the heart during a bungled robbery at a Prince Edward County farmhouse. Three local men, pleading innocence from start to finish, were arrested and charged with his murder. Two of them — Joseph Thomset and David Lowder — were sentenced to death by a jury of local citizens the following May. Nevertheless, appalled community members believed at least one of them to be innocent — even pleading with prime minister John A. Macdonald to spare them from the gallows.

The Lazier Murder explores a community's response to a crime, as well as the realization that it may have contributed to a miscarriage of justice. Robert J. Sharpe reconstructs and contextualizes the case using archival and contemporary newspaper accounts. The Lazier Murder provides an insightful look at the changing pattern of criminal justice in nineteenth-century Canada, and the enduring problem of wrongful convictions. – U of T Press

Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax
by Philip Girard, Professor, Schulich School of Law, Dalhousie University.
Published for the Osgoode Society by the University of Toronto Press.

From award-winning biographer Philip Girard, Lawyers and Legal Culture in British North America is the first history of the legal profession in Canada to emphasize its cross-provincial similarities and its deep roots in the colonial period. Girard details how nineteenth-century British North American lawyers created a distinctive Canadian template for the profession by combining the strong collective governance of the English tradition with the high degree of creativity and client responsiveness characteristic of U.S. lawyers — a mix that forms the basis of the legal profession in Canada today.

Girard provides a unique window on the interconnections between lawyers' roles as community leaders and as legal professionals. Centred on one pre-Confederation lawyer whose career epitomizes the trends of his day, Beamish Murdoch (1800-1876), Lawyers and Legal Culture in British North America makes an important and compelling contribution to Canadian legal history. – U of T Press

Dewigged, Bothered and Bewildered: British Colonial Judges on Trial
by John Mclaren, Emeritus Professor of Law, University of Victoria.
Published for the Osgoode Society with the Frances Forbes Society by the University of Toronto Press.

Throughout the British colonies in the nineteenth century, judges were expected not only to administer law and justice, but also to play a significant role within the governance of their jurisdictions. British authorities were consequently concerned about judges' loyalty to the Crown, and on occasion removed or suspended those who were found politically subversive or personally difficult. Even reasonable and well balanced judges were sometimes threatened with removal.

Using the career histories of judges who challenged the system, Dewigged, Bothered, and Bewildered illuminates issues of judicial tenure, accountability, and independence throughout the British Empire. John McLaren closely examines cases of judges across a wide geographic spectrum — from Australia to the Caribbean, and from Canada to Sierra Leone — who faced disciplinary action. These riveting stories provide helpful insights into the tenuous position of the colonial judiciary and the precarious state of politics in a variety of British colonies. – U of T Press

Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society
by Lesley Erickson, Professor, Department of History, University of Calgary
Published for the Osgoode Society by the University of British Columbia Press.

In the late nineteenth century, European expansionism found one of its last homes in the North American West. While the settlement of the American West was renowned for its lawlessness, the Canadian Prairies enjoyed a tamer reputation symbolized by the Mountie and his legendary triumph over chaos.

This fascinating exploration of hegemony and resistance in key contact zones not only complicates traditional narratives of prairie exceptionalism, it also draws the region’s history into larger debates about law, colonialism, and nation building. This book will be welcomed by social and legal historians, those with an interest in colonial and frontier history, as well as scholars and students of law and gender. – UBC Press

Gifts for the Holidays

After a series of brief speeches by the authors, Roy McMurtry concluded the evening with an invitation for everyone present to consider the Osgoode Society as a source for gifts for the Christmas and Holiday season. Not a bad idea. For details, check the Osgoode Society website – www.osgoodesociety.ca.

Click to enlarge

Public Law at the McLachlin Court: the First Decade, co-edited by David A. Wright and Adam Dodek, Ottawa law prof and brand new blogger at Slaw, has just been published by Irwin Law.

Dodek and Wright have made the introductory chapter available on SSRN, so you can get a feel for the scope and tone of the book.

From that introduction:

This book focuses on con­stitutional and administrative law decisions rendered in the first decade of the McLachlin Court. It includes contributions in both English and French from leading scholars who examine the Court’s legacy in areas such as federalism, Aboriginal rights, Charter rights such as equality and freedom of association, criminal law, and public international law.

A listing of the chapters and authors follows:

• Changing Course or Trimming Sails? The Supreme Court Reconsiders – Thomson Irvine
• Les décisions de la juge McLachlin à la Cour suprême du Canada : une analyse statistique comparative – Marie-Claire Belleau, Anik Lamontagne, et Rebecca Johnson
• The McLachlin Court and the Promise of Procedural Justice – Lorne Sossin
• The McLachlin Court and the Public Law Standard of Review: A Major Irritant Soothed or a Significant Ongoing Problem? – David J. Mullan
• Procedural Fairness at the McLachlin Court – Freya Kristjanson
• In Search of Coherence: The Charter and Administrative Law under the McLachlin Court – Susan L. Gratton and Lorne Sossin
• The Busy Harbours of Canadian Federalism: The Division of Powers and Its Doctrines in the McLachlin Court – Peter C. Oliver
• The Reconciliation Doctrine in the McLachlin Court: From a “Final Legal Remedy” to a “Just and Lasting” Process – Constance Macintosh
• The Duty to Consult Aboriginal Peoples: Government Approaches to Unresolved Issues – Lori Sterling and Peter Landmann
• Le poids de l’histoire : les années McLachlin et la liberté de religion – Nathalie Des Rosiers
• L’arrêt Kapp : L’interprétation du paragraphe 15(1) de la Charte (enfin) recentrée sur son objet égalitaire de non-discrimination – Daniel Proulx
• Collective Bargaining and Freedom of Association: Pondering B.C. Health Services – Thomas Kuttner, Q.C.
• Criminal Justice in the McLachlin Court: Many More Kudos Than Brickbats – Don Stuart
• International Law in the Jurisprudence of the McLachlin Court – John H. Currie

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Guardian – How to cook the perfect rösti – Felicity Cloake – Pronouncing it is half the struggle. The other half is whether or not to parboil.

Jotly – Rate everything – A delightful and fairly convincing spoof of all the social media startups: "Jotly is only useful so far in coastal cities…". The video works particularly well. (But wasn't there once a real site or app called Jotly? Or does it just seem like that because the satirists have chosen well?)

Times Higher Education – Economical with the actualié – Fred Inglis – This retired professor "excoriates the application of a bankrupt neoliberal ideology to the academy, and calls for scholars to rise up and free the truth from the market's clutches." I'll say. He does it with perfervid language that at times makes you think he's foaming at the mouth and biting the carpet. At other times it reminds you of Conrad Black's meccano prose. Worth reading as a good rant, though.

Oscillatory Thoughts – Why you can't individually control your toes – Bradley Voytek – A neuroscientist goes into the whole business of connections between your brain and your body parts and how you can enlarge the "toe" area of your motor cortex. Chimps still have us beat, though.

New York Times – Will the E-Book Kill the Footnote – Alexandra Horowitz – The writer reviews a book by Christopher Brand, Going, Going, Gone, and though not at all certain the e-book will be that dangerous, concludes: "Should footnotes fully disappear, I would grieve their loss. I do not find it disagreeable to bend my nose south and find further information where it lands." Spoken as though by a denizen of legal academe, where footnotes crowd out… notes.

The Guardian – The road to Ustopia – Margaret Atwood – By the Great Fords! the poetess talks about why some of her work is or is not science fiction. Her imagined worlds are "ustopias," a combination of "utopia and dystopia – the imagined perfect society and its opposite."

mervynpeake.org - Mervyn Peake the illustrator – 1911-1968 – A marvellous collection of drawings by the writer most known for Gormenghast, perhaps. Lovely depictions of characters from Bleak House, Alice's Adventures in Wonderland, Treasure Island…

Economic Policy Institute: The State of Working America – When Income Grows, Who Gains? – This is an interactive chart showing US income over time and how it's distributed across the population. Sliders let you control start and end dates of the analysis. Curiously, it would appear that the rich are getting richer. Much much richer.

The Awl – The Vicious Trademark Battle Over 'Keep Calm and Carry On' – Maria Bustillos – The WWII "Keep Calm" images have been hot lately. But like dormant bombs from that conflict, unexpected blasts of a legal nature have occurred. This raises the question of what you can copyright that's not of your own making.

YouTube – Nathan 'Flutebox' Lee – Lee uses a flute to beatbox. What would Mozart have said? ("Oh Mr. Lee" perhaps.)

Given the increasing level of globalization in the world today there continues to be considerable interest in trade with emerging markets like China.

Dan Harris of the China Law Blog provides a recommended list of English reading on commercial law in China:

1. The Legal System of the People's Republic of China in a Nutshell

2.  Chinese Commercial Law: A Practical Guide.

3. China Law Deskbook, A Legal Guide for Foreign-invested Enterprises.

4. Understanding Labor and Employment Law in China

5. Patent Litigation in China

5. Environmental Law in China: Mitigating Risk And Ensuring Compliance

6. Anti-Monopoly Law and Practice in China

You can read a full review of these texts on the site here.

The Federal Courts Rules Committee has asked that the Discussion Paper on a possible global review of the Federal Courts Rules should receive wide distribution to members of the public and the profession. The final version of the paper has been posted in both official languages on the web sites of the Federal Court of Appeal and the Federal Court.

For Slaw readers the most interesting issue under discussion is

advancements in information technology are encouraging more and more litigants to become actively involved in the litigation process, even if they do not ultimately seek to represent themselves before the court. They may want to know about the ways in which matters proceed in the Federal Courts. In some jurisdictions, such as the Federal Court of Australia, this trend has led to web-based and other initiatives to make the litigation process more accessible to the general public. This does not replace professional advice and representation, but it provides a useful service in informing the public and facilitating the involvement of litigants in a way that is consistent with the prudent management of court resources and with the effective resolution of disputes. Indeed, the increase in the use of information technology generally has changed the way in which the public expects to receive information of all sorts, and this too may affect the way in which the Rules or information about the Rules should be presented. This could entail the introduction of supplementary web-based guidance on the practice of the Federal Courts, either independently or as part of an initiative to reform the Rules.

In this message, they invite you to participate and to provide input.

Why a global review?

In 1998, the Federal Courts Rules came into being. They made many significant changes to the previous rules. Many of those changes implemented certain broad policies aimed at furthering fairness and efficiency in the management and governance of litigation.

But much has happened in the last 13 years. Over that time, and partly in response to the changing nature of litigation, many piecemeal amendments to the rules have been made. To some extent, the rules are now like a quilt on which many patches have been sown.

Now is the time to conduct a global review of the rules, examining whether they still further their purposes. In other words, now is the time to look at the entire quilt and assess it.

What has happened so far?

The Rules Committee is the body that considers and approves changes to the Federal Courts Rules. It is a committee comprised of representatives of the Federal Courts, the Bar, and the academic community. Recently, that Committee decided that a global review of the rules should be conducted. The original vision of the framers of the rules was that such a review should take place roughly once a decade.

As a result, a subcommittee on global review has been established. The subcommittee is to study the matter, consult widely with the Federal Courts’ various stakeholders, and report back to the Rules Committee. The subcommittee has begun its study.

What might change as a result of the global review?

Upon receipt of the subcommittee’s report, the Rules Committee will discuss the matter and reach certain conclusions about particular policies that need to be adopted and implemented in the rules. The global review process is a policy review and policy adoption process, not a consideration of particular rule changes.

However, if new policies are adopted in the global review process, the Rules Committee will consider how those policies should be implemented in the rules. Specific proposals for amendments to the rules may then be made.

The global review process is now under way. Now is the time for you to have your say on the policy matters that could result in important amendments to the rules.

Some of the policies being discussed right now

The subcommittee on global review has identified several policy issues for discussion and consideration. In identifying these issues, the subcommittee does not express any opinion at this time on the significance or the merits of these issues.

Professor Janet Walker has prepared a discussion paper on these issues.

To summarize, the policy issues are as follows:

1. The involvement of the courts in proceedings. At present, with the exception of case-managed proceedings, the rules largely permit parties to manage their own proceedings, with little input from the courts. Should the Federal Courts seek to engage more actively in the management of proceedings, and, if so, in what sort of proceedings, and how should management take place? Should litigation plans be required from the parties and assessed by the court, and, if so, in what sort of proceedings and on what basis should the assessment proceed? Does the existing system of case management work well? Do cases with self-represented litigants raise special considerations? Should the courts be empowered to impose sanctions for abuse of procedures and, if so, in what circumstances, and what sort of sanctions?

2. Judicial determination vs. alternative disposition (e.g., settlements)? Currently the rules are aimed primarily at getting matters ready for a judicial determination on their merits. For example, rule 3 provides that “[t]hese Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.” Can the rules do more to promote settlements? Should they? How might they do so?

3. Proportionality. Should the extensiveness of court procedures vary according to the magnitude of the dispute? What procedures might be attenuated, and in what sorts of cases? If proportionality is to be implemented as a policy, is this best done under rule 3, or under specific rules concerning particular procedures?

4. Practice directions. These allow for minor procedural matters to be addressed quickly and flexibly. However, they are not the product of wide consultation and counsel and self-represented litigants are often unaware of them. Are too many matters being regulated by practice direction? Should any existing practice directions be promoted to rules or vice versa? What can be done to ensure greater compliance with practice directions? Can practice directions be better publicized? How?

5. “One size fits all” procedures vs. specialized procedures. For the most part, the rules adopt a “one size fits all” approach – virtually all of the rules apply to virtually all proceedings. Should there be specialized procedures for specialized areas, e.g., intellectual property, immigration, or does the “one size fits all” approach work well even for specialized areas?

6. The architecture of the rules. Is the current structure, ordering, numbering and indexing of the rules “user-friendly”? In this regard, it should be remembered that some users are self-represented litigants. Might “user-friendliness” be accomplished in other ways, such as through the use of information technology, and, if so, what ways?

7. Other issues. We invite you to suggest other policy issues that should be discussed and considered, and to offer your views on those issues.

Please note that another subcommittee is examining issues relating to the rules and whether they pose an obstacle to the use of information technology. Those issues are not within the mandate of this subcommittee. Ultimately, the work of both subcommittees will be considered together by the Rules Committee, and specific reforms may be proposed.

We invite you to participate

You can participate in two ways. First, you can provide written comments directly to the subcommittee. Second, this autumn, there will be an opportunity to meet and discuss these issues with members of the subcommittee.

To make written comments, please email or write by January 6, 2012 to:

Ms Chantelle Bowers,
Executive Assistant to the Chief Justice,
Federal Court of Appeal,
90 Sparks Street,
Ottawa, ON K1A 0H9
Chantelle.Bowers@fca-caf.ca

Dates and locations for the meetings will be announced in the new year.

Hats off to the judges present and past (four retired judges) of the Prince Edward Island Court of Appeal who are giving up evenings in November to provide educational sessions for islanders on PEI's courts, the Charter of Rights and Freedoms, public law, criminal law, civil law and family law. It will also include a tour of the Sir Louis Henry Davies Law Courts building where participants can see the courtrooms, holding cells, law library and public areas.

The free sessions will take place November 8, 15 and 22 starting at 6:45 p.m. and registration is limited to 50 people. Registration starts Oct. 26 and anyone interested in taking part can call Sheila Gallant at 902-368-6024 or send an e-mail to sfgallant@gov.pe.ca.

Curious that the website for the courts hyperlinks to the Federal Courts Administration website – whoever did the linking needs to attend in November to understand the court system.

Next to the Guardian where George Monbiot's argument on the expense of scientific information is applied to legal information – the piece is by Judith Townend under the lede The law that wants to be free – Reams of legal information are still squirrelled behind paywalls. Yet more and more lawyers are sharing their knowledge for free.

It is encouraging to see an increasing growing move towards online publication: the Ministry of Justice's proactive digital engagement; the release of judgment summaries by the supreme court; an emphasis on openness by the Master of the Rolls; and an increasing number of published judgments made available. Initiatives such as a recent MoJ family courts pilot are to be welcomed. It tested out publishing more magistrate and county court judgments, with the aim of increasing transparency and improving "public understanding of the family justice system".

"It strikes me that if anything it is a good thing for the press to be able to have access to the court's raw judgment, rather than relying on the account of a select few parties to the case," wrote legal blogger and researcher Lucy Series.

.

David Allen Green will publish a weekly round-up of UK legal blogging for The Lawyer. Should be worth following: here are three pieces I had missed:

A complaint from in-house counsel about the casual attitude lawyers take to the confidentiality of client matters, when working on public transit – the message is just as relevant this side of the Atlantic.

The General Counsel of the Financial Times on why legal costs are outrageously unjustifiable

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Lest you think that this is all based on Jonathan Sumption's rumoured £10 million plus retainer in the Roman Abramovich Battle of the Oligarchs case – Slaw readers will be encouraged to learn that the soon-to-be Lord Sumption owns 7,000 volumes on the Hundred Years War – here is a piece on why GCs feel the same way here.

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Wired Magazine – The Search for a More Perfect Kilogram – Jonathon Keats – "Le Grand K" is held in a vault just outside of Paris under three bell jars. Even so, the standard has been losing weight — or we've been gaining it. So the search is on for a new constant.

GQ – The Ghostwriter – Andrew Romano – Thirteen singer/songwriters, including Bob Dylan, Merle Haggard, Nora Jones, put music to the lyrics left in a notebook by the great Hank Williams, who died 58 years ago at the shockingly young age of 29. This is the story of how the albumn, The Lost Notebooks of Hank Williams, came to be. [As a bonus, here's a brief clip from The Sermon On the Mount by Williams/Haggard.]

YouTube – Fifty People, One Question: Chicago – Galvea Kelly – The question? What is your favourite memory?

Edge – A History of Violence – Stephen Pinker – The noted Harvard Psychology prof expounds (and is questioned) on his proposition that the world has never been a safer place. Pinker's recent book, "The Better Angels of Our Nature: Why Violence Has Declined," has been subjected to considerable criticism. There's also a video on the Edge site of Pinker's presentation and the discussion afterwards.

The Walrus – Food for Thought – Craille Maguire Gillies – Mirko Betti’s lab at the University of Alberta is inventing — and growing in vitro – meat.

YouTube / TED – How I built a toaster — from scratch – Thomas Thwaites – A charming man discovers that "it takes an entire civilization to build a toaster." (Or, as Carl Sagan once put it: "If you wish to make an apple pie from scratch, you must first invent the universe.")

NPR – The Tyranny Of Modern Time – Adam Frank – A meditation by an astrophysicist upon the occasion of the autumnal equinox, on time and how it now "accelerates and compresses" our lives.

The Smart Set – Mean Girl – Paula Marantz Cohen – The author lets us know right up front: "I was never on the Jackie O. bandwagon, and I never will be now." "Now," of course, refers to the publication of Jacqueline Kennedy’s 1964 interviews with Arthur M. Schlesinger, Jr.

Salon – The birth of the Google Translate era – Thomas Rogers – "The rise of new technology is changing the way we think about language and the world." A Canadian explains how.

Reuters – Chart of the day, median income edition – Felix Salmon – "[R]eal incomes [in the US] are more than 10% lower today than they were over a decade ago." It's fallen 6.7% in the two years since the recession was officially over.

The OIPC BC released Guidelines for Social Media Background Checks yesterday. The Guidelines were developed "to help organizations and public bodies navigate social media background checks and privacy laws."

The Guidelines outline the privacy risks associated with the use of social media to screen and monitor current and prospective employees, volunteers and candidates, including:

The collection of potentially inaccurate personal information;

The collection of too much or irrelevant personal information;

The inadvertent collection of third-party personal information; and

The overreliance on consent for the collection of personal information that may not be reasonable in the circumstances.

The Guidelines also provide additional information on what to consider and what to avoid when performing social media background checks.

Chas Rampathal, the General Counsel and Vice President of LegalZoom is giving the lunch keynote at today's PLTC 2011 in Vancouver on the Future of Legal Practice.

LegalZoom is a company that is responsible for 20% of the corporate formations in the US last year.

This is a live post:

Pressures that force change

Large businesses and general counsel are forcing change on their law firm

Consumers and small businesses are an unmet market. Legal Zoom's success is testimony to the potential.

Academic commentators wonder what the future of the law firm will be

How is the legal profession responding – who should control the change?

The forgotten legal customer

Richard Susskind

First thing we do – let's deregulate all the lawyers

Law21

Who is the legal consumer?

The term is not the client – but consumer

How do we know what they want?

Who is the legal consumer of the future – unmet legal needs of the middle class.

Small business needs

They want help – simple, fast economical and trustworthy.

Doubt that meaningful reform can come from within the legal system. Are lawyers equipped to take the tough road of reform. We have had a long time to open up access to legal services for the middle class. Most people cannot afford real legal help.

Lawyer billing rates are going up at a time of economic pressure.

Chas is both inside and outside of the system.

First ABS in England formed – LegalZoom will open in the UK next year. With a law firm.

Innovation will come from outside the profession. Need to have a continuum of services – good enough.

Law in a flat world – Hadfield

Legal Advantage for LegalZoom

Target and CostCo model.

Anatomy of a middle class legal solution –

Brand recognition +
online information gathering and interaction for the web-savvy solution +
affordable pricing through volume and monthly subscriptions +
customer care and responsiveness +
helpful attorneys working through technology not adjacent to technology +
easy or online delivery of documents +
social gathering place for like-minded consumers +
project management and operations efficiency +
willingness to refer other consumers +
internal crowd-sourced knowledge management +
check list manifesto to gather information and use for quality control (no bad day) +
economies of scale through creation of templates

LegalZoom is testing the approach but how long will this take?

LegalZoom

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Edible Geography – How Wine Became Metropolitan: An Interview with David Gissen – Nicola – An archtitectural theorist turns wine nerd and re-draws the France's wine appellations as stops on a regional subway line.

Parliamentary Information and Research Service – Demographic Change in Canada – André Léonard – Five well-written pages that tell us something about who we are now, all 34.3 million of us.

Sabotage Times – Eating Cheese Sandwiches With Roy Orbison – Jon Wilde – We learn about the growl on "Pretty Woman" and a whole lot more about the man who, in Elvis Presley's hyperbole, was "the greatest singer in the world."

Vimeo – How to Peel a Head of Garlic in Less Than 10 Seconds – Saveur.com – Saveur Magazine's executive editor Todd Coleman peels a head of garlic tout de suite. Makes it look easy. I think it might be.

SPACE.com – SpaceX Unveils Plan for World's First Fully Reusable Rocket – Mike Wall – Capitalism spreads its wings, so to speak. Good pics, video.

Vimeo – Bee Aware – Dan Rather – The noted reporter examines the damage that bees may be suffering as a result of the use of certain pesticides and the possible coverup the American EPA of its effects.

Poetry Magazine – Personal – Tony Hoagland – Don’t take it personal, they said; / but I did, I took it all quite personal—

Sports Illustrated – The Art Of Winning An (even More) Unfair Game – Tom Verducci – Baseball is now the new Moneyball.

BBC Radio 4 - Life and Fate – Vasily Grossman – You've still got a few days left to download the early episodes of this 13 part drama starring Kenneth Branagh and David Tennant. The long winter nights are coming; store up some great radio to go with the chestnuts and hot toddies.

The Atlantic – The World's Rudest Hand Gestures – James Gibney – A slide show of why it's probably a good idea to keep your hands in your pockets. In most places.

Last week the Law Society of Upper Canada issued Guidelines for Law Office Searches.

Such searches are rare but when they do occur, lawyers must realize that they have certain duties and obligations to protect solicitor-client privilege, which is a fundamental right belonging to the client. The Supreme Court of Canada has held that the Criminal Code procedures governing law office searches were unconstitutional. So when a search occurs, lawyers are advised to consult the Guidelines, which are intended to assist them in protecting the common law solicitor-client privilege of their clients and which also provide best practices and general advice for dealing with particular situations.

Here are the highlights:

WHEN THE POLICE ARRIVE AT A LAW OFFICE
Inspect the search warrant
• Ensure that the law office is identified as the place to be searched,
• Ensure that the date the Police have attended at the law office is the date authorized,
• Ensure that the documents sought are identified,
• Ensure that the offence under investigation is identified,
• Ensure that the requisite judicial officer has signed and dated it,
• If there are deficiencies on the face of the warrant, point them out to the Police and assert that the Police should obtain a proper warrant, and
Do not obstruct the Police, even if you believe the search warrant or its manner of execution to be invalid.
Assert Privilege over all documents to be seized under the search warrant.
Is a Referee required?
Where the Lawyer may be a target of the investigation, if the Lawyer is in a conflict of interest and where there is no Lawyer present, this should be raised with the Police and either the Police or the Lawyer should make an application to the Court for the appointment of a Referee.
Is an Independent Forensic Computer Examiner required?
If the documents sought are on a computer or other electronic device/media, the assistance of a Court appointed Independent Forensic Computer Examiner may be required.
Do I need a Lawyer?
You are the only one who can answer that question. However, you can contact a Lawyer and you may find it helpful to speak with a Lawyer.
Lawyers should contact the Law Society at 416-947-3300 and ask to speak to Senior Counsel to
the Director of Professional Regulation for assistance when faced with a law office search

Next steps to be taken by the Referee or the non-conflicted Lawyer
• Keep notes of participants, contacts, happenings and timing,
• Identify and assert privilege with respect to all documents,
• Offer to, or if requested by the Police, locate the documents and, where practicable, make and keep copies of them,
• Comply with the terms of the search warrant and give only what is demanded by the warrant,
• Retain copies of all documents, to the extent that it is possible, time permitting,
• Offer to, or if requested by the Police, seal the documents in packages marked for identification and
initialed by you and the Police; taking care to ensure that the Police do not see the documents or any client
names,
• Ensure that the sealed packages are delivered to the custody of the Court or an independent third party as designated by the Court in accordance with the Court order, and
• Make reasonable efforts to contact the Clients whose documents are subject to seizure to advise what is happening and advise that they may wish to obtain independent legal advice.
The Search Warrant has been executed – Next Steps
If necessary initiate or respond to applications before the Court that may include applications for,
• An order to unseal and access the sealed packages,
• The appointment of a Referee or an Independent Forensic Computer Examiner,
• The determination of objections to the search warrant or its manner of execution,
• The determination of issues of solicitor-client privilege,
• Further searches such as a comprehensive electronic search of an electronic device/media or a forensic image, and
• Direction with respect to the notification of the Clients of the search for and seizure of solicitor-client
privileged documents.

The law is well described here and the entire report to Paul Schabas' committee is here.

Recently, I had occasion to look at the speeches and presentations made by members of ultimate courts of appeal – the Supreme Court and its equivalents. And Canada ranks somewhat disgracefully last in terms of making the speeches publicly available.

Eugene Meehan has monitored the court too for speeches and presentations, but his pickings are similarly slim in recent years.

Compare this record to Chief Justice French of the High Court whose seventeen speeches from 2010 and eleven to date from 2011 are available here

His predecessor Chief Justice Brennan's speeches from the Nineties are there prominently available.

The new UK Supreme Court has a decent record, though some falling off between 2010 and this year.

Even Chief Justice Balakrishnan has a better record in New Delhi.

The US Supreme Court seems to publish only speeches by justices nominated under Democratic administrations – Chief Justice Roberts speaks often but you won't find the speeches archived. I found remarkable a speech by Justice Ginsburg from July commenting on the most recent term.

All I can assume is that the updating of the SCC website has lost priority because of other pressures, or that the controversy from the conservative press' reaction to the Unwritten Constitutional Principles speech has led the court to permit publication of remarks in other places, but not the court's own website.

There is an important speech by Justice Ian Binnie entitled, Sondage Après Sondage . . . A few Thoughts about Conflicts of Interest” by Justice Ian Binnie, edited version of remarks at a panel discussion at Les Journées Strasbourgeoises in Strasbourg, France, on July 4, 2008, which illuminates the court's decision in R. v. Neil but you won't find it anywhere electronically, only in a conference volume published by Les Editions Yvon Blais.

And speaking of Justice Binnie, the entire transcript of his interview with the Globe and Mail's Kirk Makin is well worth reading.

The following article by Nora Rock appears in the Fall 2011 issue of LAWPRO Magazine.

At LAWPRO, we’ve seen a growing proportion of incivility allegations cropping up in claims. For example, lawyers may find themselves personally liable to pay a party’s costs under Rule 57.07 (Rules of Civil Procedure) where the court has found that the lawyer’s actions contributed to running up the bill.

Incivility can also lead to other consequences. The client’s case may be prejudiced because the lawyer is unfavourably viewed by a jury; or a prospect of settlement may evaporate in the face of a lawyer’s rigid posturing. Finally, a court may make an order designed to rectify an abuse of process: For example, an order terminating discoveries, or dismissing motions deemed excessive. It’s not difficult to understand that these consequences of uncivil behaviour often culminate in a claim against the lawyer.

Here are some consequences of incivility that LAWPRO has noted:

Self-represented lawyer must still behave like a lawyer

While representing himself in a defamation action against a publisher, a lawyer made “intemperate” statements about the defendant organization in his pleadings, including accusing it of “evil profiling.” In correspondence with the defendant’s counsel, he accused them of sharp practice, and suggested that they were personally motivated to ruin or embarrass him. The court found that the lawyer’s statements violated Rule 6.03 of the Rules of Professional Conduct, and ran contrary to Principle 27 of the Principles of Civility published by The Advocates’ Society, which provide that a lawyer should not:
“…attribute bad motives or improper conduct to opposing Counsel, except when relevant to the issues of the case and well-founded.”

In dismissing the litigation due to the plaintiff’s non-compliance with certain court orders, the court ordered that the plaintiff pay costs on a substantial indemnity scale, but only for the motion in which the inappropriate comments were made. The lawyer protested that he was appearing not as counsel, but as a self-represented litigant, and so should not be subject to punitive cost awards designed to curb lawyer misbehaviour. The court disagreed, holding that “…a lawyer who is representing himself is still acting as a lawyer (as well as a litigant) and is bound by the rules that apply to lawyers.”

Civility to clients is at least as important as civility to members of the justice system

In another case, the discipline committee of the Law Society of Upper Canada considered seven separate allegations of professional misconduct made against a lawyer.

Three of the five allegations related to the lawyer’s relationship with clients. The first two centered on the tone of a letter sent to the client in an attempt to collect fees. In the letter, the lawyer made a racist remark about the client and threatened criminal proceedings if the client failed to pay the lawyer’s bill.

The final allegation described the lawyer’s refusal, after being removed as the solicitor of record, to transfer the client’s file to the successor lawyer. The Law Society found that all of these actions constituted professional misconduct. In addition to the penalty imposed by the Law Society, a successful claim was made against the lawyer’s malpractice insurance.

In our experience, incivility to clients is an important trigger for claims. Even though the claim may ultimately be framed in negligence, it is not uncommon for the claim to be filed in reaction to an incident of incivility. As noted by Mark Lerner, establishing a relationship of mutual respect and trust at the outset of the lawyer-client
relationship can prevent much misery further down the road.

Rule 57.07 intended not to punish, but to compensate

An important message about the purpose of Rule 57.07 (costs against a lawyer) was reinforced in the judge’s reasons in a case that ended up in an insurance claim.

In this case, the court found that while the lawyer’s deportment was quite civil (with one minor exception), the lawyer was ill-prepared for the litigation. His weak grasp of evidence law and the Rules of Civil Procedure led to considerable time and effort spent by opposing counsel to address matters (for example, the testimony of “experts” that the court ultimately refused to qualify as experts) that never amounted to anything. In characterizing the lawyer’s case as “a moving target,” the court found that the lawyer’s lack of preparation increased the costs for the other side, justifying a Rule 57.07 order. The court made it clear that, as established in Walsh v.1124660 Ontario Ltd. ( [2007] O.J. No. 639, Lane J.), Rule 57.07 is designed not to discipline lawyers, but to compensate aggrieved parties for wasted costs.

Whether or not it flows from incivility, fighting a Rule 57.07 order often means the lawyer must make an insurance claim to cover not only the costs ordered in the litigation, but also the lawyer’s own defence costs.

The bottom line here: Being professional means not only being civil, but also being prepared – a duty lawyers owe not only to their clients, but also to opponents and to the court.

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Guardian – Scott of the Antarctic: the lies that doomed his race to the pole – Robin McKie – "Far from being a heroic amateur as he's so often portrayed the explorer championed science and, as Robin McKie reveals, was a victim of cruel luck – and deception"

The Toronto Review of Books – Conversation: A Declining Art? – Katherine R. Larson – University of Toronto English professor talks on conversation in the Trinity Alumni Lecture Series in this 45 minute podcast.

The Chronicle of Higher Education – The Battle Over Zomia – Ruth Hammond – Scholars battle over whether this "anarchic region" in South-East Asia is real.

YouTube – BBC: Synth Britannia – This full-length documentary follows "a generation of musicians who took the synthesiser from the experimental fringes to the centre of the pop stage."

Scientific American Blog Network – Menstruation is just blood and tissue you ended up not using – Kate Clancy – A brief look by a scientist at the way science has regarded menstruation as dangerous.

World Carrot Museum – The Road to Domestication of cultivated carrots – This… unusual website charts the history of the carrot in seven parts. This is part five, which explains, among other things, how it is that carrots came to be orange.

Statistics Canada – Deaths: Table 1 Life expectancy at birth and at age 65 by sex, Canada, provinces and territories, 2006–2008 – The variability according to sex, location, and age is interesting. Best to be a 65-year-old woman in British Columbia.

Grantland – The Nets and NBA Economics – Malcolm Gladwell – "A man buys a basketball team as insurance on a real estate project, flips the franchise to a Russian billionaire when he wins the deal, and then — as both parties happily count their winnings — what lesson are we asked to draw?"

The New Yorker – Cartoons from the Issue of October 3rd, 2011 – Fifteen that will (surely) make you smile.

YouTube – Jean-Paul Gaultier Show Fall 2011 Paris – fashiontv – Glamour – once you're past the Cherios ad. Looks like the bouffant is back!?

The Fall 20011 issue of LAWPRO Magazine features an article called Let's Get Talking, in which LAWPRO canvassed a number of people inside and outside the legal profession on the topic of client engagement and communication. What we learned is that there is often a problem with the way lawyers communicate with their clients. Communication is integral to the client experience, and a bad customer experience often defaults into an allegation of communication failure (the source of almost half of LAWPRO claims costs).

The end of the article features a summary of tips from the experts we spoke to on how they make communication work better for them:

• Give your clients some homework: Give them a checklist of things they will need to do and should want to do to help keep the case moving forward.
• Give them a “manual”: This doesn’t have to be as thick as a car manual, but it could offer basic information about the type of law you will be helping them with, a breakdown of the processes involved and, when possible, timelines or estimated timelines.
• Treat each client as if she is your only client and your business depends on her: This doesn’t mean worshipping the ground she walks on. It means turning off your phone, not checking your email and putting all your attention on the file before you – not the file sitting on your desk upstairs.
• Remember the little details:Take a minute to familiarize yourself with the file or documents before you meet with the client. Try to remember some more personal details about the client as well – his family details, hobbies, or job. Try connecting on a personal level.
• Practice the art of (partial) silence: When a client first comes in to discuss a matter, let the client do the talking, at least at first. Ask appropriate questions to get to the heart of the matter.What exactly does the client need you to do and why?
• Don’t assume the client understands:When you are explaining something, ask the client if she understands what you are talking about. Take it a step further and have her explain it back to you.
• Be up-front about costs: To the best of your ability, lay out how the client will be charged. Is he going to be charged a flat rate? Will you charge by the hour? Do follow-up phone calls “count” towards that hour? How much is the retainer and how will it be replenished? Be open.
• Find out the best way to communicate with the client:Rather than force the client to call you on your schedule, find out if email is a better way of keeping in touch with the client.
• Spell out your return correspondence policy: Let clients know you will always get back to them in a certain time frame, even if it is just to say – “a tad busy now, but will get back to you tomorrow.”
• Provide regular updates: Keep the client informed with what is going on in his file. This is especially important when the file has a long shelf life and there may be long periods of inactivity.
• Acknowledge when you receive new information from the client: Your client needs to know you have that new document in your system and it hasn’t been lost in the mail.

All of the papers from the 2007 Brooklyn Law School symposium on law, science and truth "Symposium: A Cross-Disciplinary Look At Scientific Truth: What's The Law To Do?" as published in (2008) 73 Brooklyn Law Review are are available for downloading in one pdf here.

I recommend them (for whatever that's worth).

Any Canadian lawyer-type reading any of those pieces should also read Mr. Justice Binnie's "Science in the courtroom: the mouse that roared" (2007) 56 UNB LJ 307. The article is available on Carswell/Westlaw and can be found here and here.

He has more to say about science in the court room in his recent "exit" interview. The full interview is on the Globe and Mail site.

DC

At least according to this poll, conducted by private US research firm Harris Interactive. The poll includes some interesting numbers on the current (general) geographical distribution of e-readers, plans of consumers to purchase e-readers, and some broad numbers on the effects of e-readers on reading habits.

This report does not state how many people were polled, does not reveal standard measures of significance, and notes that the respondents were selected from "among those who have agreed to participate in Harris Interactive surveys" so your mileage may vary. Still, the results don't seem unexpected to me.

The mixed results on the reported effects of e-readers on quantity of reading is borne out by other studies, most recently in Woody et al. (2010) but also in many other studies. The deep engagement with the text that is the gold standard of reading does not typically happen yet online. A great introduction to this area of study is free online in UNB librarian Barry Cull's "Reading revolutions: Online digital text and implications for reading in academe" 16 (6) First Monday (30 May 2011) .

In legal education, there are a couple articles that grapple with the issues of teaching critical engagement with the print and online text, both by the same authors D.M. Curtis and J.R. Karp: 41 Willamette L. Rev. 293, and 30 Hamline L. Rev. 247. There is also an interesting book that purports to teach higher-level reading skills to law students, and which strikes me as a very useful text: R.A. McKinney Reading Like a Lawyer: Time Saving Strategies for Reading Law Like an Expert, (Durham, N.C.: Carolina Academic Press, 2005).

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Vimeo – Faces – arturo castro – "This is a technical demo for face substitution technique. The application works in real time…"

Lapham's Quarterly – Staking a Life – Christopher Hitchens – A polemic against capital punishment on the day after the execution of Troy Davis in the United States.

The Millions – 9 Ways of Looking at a Single Paragraph – Michael H. Rowe – Not quite the kind of thing you have in mind when you're looking for peer review in the office.

Musicovery – A very cool interactive dot map representing tunes over the last five decades and assessing their popularity: hovering over a dot (a square, in actual fact) plays you a snippet of the song in question. Filters by kind of music are available.

The Toronto Review of Books – Toronto Twitter Scene – Shawn Micallef – Says Micallef, "I now follow roughly 1100 people." I'd say "roughly" would have to be right with a number like that. Still, it's fun to read more than 140 characters about the 140-character app.

Statistics Canada – EnviroStats: Precipitation trends in Canada: 1, 2 – Jeff Fritzsche – Yes, folks, some charts. We talk about the rain and snow and now we can get some ammo for our griping: it's getting wetter over time, but mostly in the east and the arctic.

YouTube – The Actual 1973 "Giving Tree" Movie – Shel Silverstein – An animation of his children's book narrated by himself, the man who's also responsible for writing "Sylvia's Mother."

The Atlantic – The Dark Side of the Placebo Effect: When Intense Belief Kills – Alexis Madrigal – "While people of all cultures experience sleep paralysis in similar ways, the specific form and intensity it takes varies from one group to the next." For the Hmong it can prove deadly.

The Believer – Doubling in the Middle – Gregory Kornbluh – A discussion with Barry Duncan, a man who can fashion palindromes of incredible length. See his Greenward Palindrome, 1544 characters (401 words) long.

The New Yorker – What Good Is Wall Street? – John Cassidy – "Much of what investment bankers do is socially worthless."

The following article by Tim Lemieux is from the latest Fall 2011 issue of LAWPRO Magazine. It looks at communications-related claims at LAWPRO in different areas of law and asks claims counsel how these mistakes can be prevented.

No matter what the area of practice, the number one source of claims at LAWPRO is a breakdown in communication between the lawyer and client. And those numbers are increasing.

Between 2005 and 2010, more than 4,200 communications claims — an average of 711 a year – have been reported to LAWPRO. The total cost of these claims to date is about $150 million – and likely to rise as more recent years’ claims are resolved.

During that same period, the percentage of claims resulting from communication issues has also increased – to 35 per cent in 2010 from 32 per cent in 2005. More concerning is the increase in costs – to 45 per cent of all claims costs in 2010 from 32 per cent in 2005.

What’s ironic about this discussion is that communications claims are potentially easy to prevent. This is a risk management message that we have consistently sent to lawyers through past issues of LAWPRO Magazine, our Managing booklets and at every presentation on claims prevention.

And still the numbers creep up.

So rather that simply repeat the message that “lawyers need to communicate better”, we thought we’d take a different approach and look at how communications claims can arise in particular areas of law.

We asked LAWPRO claims counsel with expertise in the various areas of law to provide insights into the communications mistakes they see in their daily handling of claims files. We hope this approach makes the advice more relevant to makes it easier for you to implement risk management steps in your own practice.

Real estate

Real estate claims make up the largest share of communications claims. Busy, high-volume practices often lead to situations where the lawyer is not taking the time to communicate with the clients properly. Mitchell Goldberg, unit director and counsel and Nadia Dalimonte, claims counsel, both in our Specialty Claims Department, provide some examples of the kinds of claims they see in this area of practice.

Meet the client – yourself – and ask questions

The common thread running through the examples that follow is that many real estate lawyers say they are too busy to communicate directly with clients: They rely on clerks, so the lawyers themselves become removed from the process. “It is always preferable for the lawyer to meet with the clients and review the important documentation in the file with the clients at that time. In the event of a claim,” says Dalimonte, “it’s not usually a strong defence for the lawyer to say to us ‘well, the clerk met with the client.’”

Some lawyers, she adds, take the position that their job is to carry out only the title conveyancing, when what they should have done is take the time to speak to the client to ensure they’ve gathered all the relevant information.

For example, although only one person may come to the lawyer’s office, there could be a joint tenancy on a matrimonial home. LAWPRO has seen a number of claims where the lawyer did not get the consent of the spouse to change the ownership status or encumber the property with a mortgage. Take the time to discuss important information such as the client’s marital status to determine whether the consent of a spouse – or other joint tenant — needs to be obtained, or whether the spouse needs to be sent for independent legal advice (depending on the nature of the transaction).

Another source of claims involves situations in which parents get involved in their children’s real estate dealings – such as the transfer of a parental property to a son or daughter, or the purchase of a home by the child with the parents guaranteeing the mortgage or taking title with the child and actually beoming mortgagors. The parents often later claim the lawyer did not properly communicate the potential consequences to them (e.g. if the children did not keep up the mortgage payments, the lender could come after them) or failed to send them for ILA.

There may be issues of capacity or language barriers preventing the clients from fully understanding the proceedings. Until you sit down and talk to the clients, these kinds of complicating factors might not be apparent.

Use title insurance wisely

Lawyers using title insurance also need to take the time to communicate directly with clients. Often the lawyer fails to ask clients about possible future uses of the property that the client might have in mind, and as a result fails to get a title insurance endorsement that would protect the clients (e.g. they planned to build a pool, but later discovered a subdivision agreement prevents it) .Similarly, lawyers sometimes fail to discuss whether a client wants a survey or a particular search done.

“They just assume title insurance takes care of issues that could arise, so that the lawyer has no documentation in the file to demonstrate that the lawyer discussed what the client did or didn’t want” says Mitch. Failure to have that conversation may constitute negligence, and also may violate the commentary to the Rules of Professional Conduct that addresses informing clients about options to assure title.

Remember the lender client

Lawyers also need to remember that lending institutions are also their clients: We’ve seen claims in which lawyers have failed to communicate material information to the lender client so the lender can make an informed decision on whether to advance mortgage funds. Such details could include the correct purchase price, current ownership, or whether the purchaser is going to reside in the property.

Litigation

Jennifer Ip, unit director and counsel (Primary Professional Liability Claims Department) and Yvonne Diedrick, claims counsel (PPL) provide some insights into how breakdowns in communication with the client can derail litigation or leave the client dissatisfied with the outcome.

Put it in writing

One of the biggest issues in the litigation claims LAWPRO sees is a failure on the part of the lawyer to properly document instructions. Clients may later say they asked the lawyer to do X and it wasn’t done; or the lawyer may have done Y and the client claims he didn’t authorize this course of action. If there is no documentation of the lawyer client/conversations, the claim then turns on credibility, and the experience has been that courts are more likely to believe the client’s recollections (the case is top of mind for the client, but only one of several for the lawyer).

The same failure to document discussions can be seen when advising clients on the terms of settlements and what the client can expect. Clients can be left thinking they will receive more monies out of the settlement than they in fact get. “They may try to claim they were not aware that a portion of the award would flow back to the lawyer in fees” says Ip.

When it comes to motor vehicle cases, some lawyers will handle only the tort action or only the accident benefits claim, not both, but they fail to put this limited retainer into writing. The client then comes back and says the lawyer failed to follow instructions – but by then the limitation period has expired – and now the lawyer faces the prospect of a claim. Even if you have put the limited retainer into writing, make sure the client understands what this means.

Many communication errors result in accusations of an improvident settlement. For instance, an insurer may offer to settle for a lower amount than is really justified by the facts of the case and the lawyer is obliged to present this offer to the client. The client may want to settle, but if the lawyer doesn’t recommend the settlement, this advice should be clearly documented and communicated. Otherwise the client may come back later, perhaps when the money runs out, and accuse the lawyer of not properly explaining the situation and or not making clear that the settlement may have been greater if the matter had been pursued further.

Take the time to explain – and document

During a trial, things can happen quickly. LAWPRO has seen claims in which an offer was communicated verbally mid-trial. The lawyer then quickly explains (or says she explained) the offer to the client. The client rejects the offer and the lawyer’s recommendation to accept it, and goes on to lose the case. The client then sues the lawyer saying “had I properly understood the offer, I would have accepted it.”

On the flip side, it may be the client who chooses to accept an offer to settle for a lower amount – despite the lawyer’s advice to the contrary. No matter how rushed you are or how convincing (and happy) your client appears, take the time to make notes of your conversations with the client and make sure your client fully understands the implications of the decision he or she is making..

Similarly, lawyers should communicate (and document that they have done so) the prospects of winning or losing a case. This is especially so in cases where the client insists on pursuing the case “on principle.” When the client loses, it’s suddenly no longer about the principle. “If the lawyer is of the opinion that the client has a weak case, the client needs to be told so and instructions to proceed to trial, despite the lawyer’s recommendation not to proceed, should be written down,” says Ip.

Communicate clearly – face-to-face if possible

As in all areas of law, lawyers are using email to communicate – resulting in increased misunderstandings. Clients or lawyers read things into emails that aren’t there, miss the meaning of what was said, or read between the lines and make assumptions, says Diedrick. “You can’t replace face to face communication. If geographic distance makes that difficult, pick up the telephone and later document the call in a follow-up letter or email.”

This is particularly important in litigation matters, which can go on for long periods of time and involve strong emotions. There isn’t necessarily the same tradition of a pivotal lawyer-client meeting as often occurs before the closing of a transaction in other areas of the law. Consider when in a long piece of litigation you should be sure to meet with the client, and more, document your discussions.

Corporate law

Anna Reggio, Claims Counsel (PPL), says corporate communication claims often arise from confusion over the breadth of the insured's retainer and who is representing the interest of whom in an environment of fast-paced, and sometimes large dollar, transactions where the niceties of communicating may get overlooked.

Know who your client is – and communicate this clearly

A question which frequently arises is the question of who the lawyer is acting for and whether it is the corporation or one or more of the shareholders. The interest of the corporate entity may be different from that of one or more of the shareholders and therefore, the corporate entity should be separately represented.

Certainly, in any given proposed transaction or agreement, each shareholder's interest may vary from one or more of the other shareholders. Therefore, in fact, the corporate entity and each of the shareholders should really be represented by their own lawyer.

Often, in closely held corporations, the lawyer will meet with all of the directors, officers and shareholders to discuss the terms of a transaction to be entered into by the corporation or the terms of a transaction or agreement amongst the shareholders. A shareholders' agreement, for example, is one of the more common agreements under discussion.

In many cases, the parties are of the view that it is not financially expedient for the corporate entity and each of the shareholders to be separately represented. In other cases, the transaction may be clipping along and the parties are too focused on their negotiations to care about the lawyer's oral caution that they should obtain independent legal advice or independent representation.

Later, a disgruntled party may allege that he or she relied upon the lawyer and may accuse the lawyer of having been in a conflict of interest, preferring the interest of one party over another (particularly where the lawyer has represented the other party or parties in the past) or of failing to consider and advise that party of the implications arising from the particular transaction or agreement. The lawyer may well respond by saying that he or she was not acting for the complaining party, but rather, acting for the corporate entity or, possibly, for another shareholder but if this was never clearly communicated, in writing, the lawyer is faced with a credibility dispute.

The lawyer should write to all principals to clarify and confirm who he or she is acting for. The lawyer should confirm that the other parties will not be provided with any advice and that they should not be relying on the lawyer for that purpose.

Further, the lawyer should tell the other parties or entities to retain independent counsel or obtain independent legal advice, preferably as evidenced by way of a Certificate of ILA, depending upon the circumstances. Otherwise, the lawyer must obtain a signed, written acknowledgement of this advice together with a waiver of independent counsel or ILA.

“There is no shortcut for this,” says Reggio. “The lawyer needs to get written, signed acknowledgements to protect him or herself.” (If the lawyer chooses to proceed to act for more than one party, the lawyer faces the inherent risks of failing to meet the onerous burden of providing the best possible advice to all of the clients in the circumstances. Also, depending on the deductible chosen, the lawyer may also face the obligation of a double deductible under the LAWPRO policy if he or she is subsequently sued, even if a written acknowledgement and waiver was obtained.)

Be clear about the services you are providing

Lawyers should also communicate clearly and in writing to confirm that they are not providing business advice and they are not reviewing financial statements or providing any tax advice, where applicable. Lawyers should specifically advise the client in writing to get advice from tax specialists, accountants or other experts where necessary and applicable.

Family law

Yvonne Bernstein, litigation director and counsel (PPL) with extensive experience in family law claims, talks about the potential for misunderstandings and communication breakdowns in family law.

Using email means you need to be clearer and work harder at good communication
The increased use of emails to replace face-to-face meetings has significant implications in family law where emotions (and tensions) often are high; clients can be difficult, emotional and prone to misunderstanding (and for these reasons some lawyers find the lack of face to face contact a good thing).

While no doubt email is a faster form of communication, the in-person conversation provides visual cues and the discussion is more interactive. The lawyer can judge reactions, and make sure everyone understands. Email promotes a more stilted, incomplete communication, says Bernstein.

In a recent claim a client was informed by email about what was being negotiated and agreed to the settlement; but the client had not been given enough information on a certain part of the settlement. He later sued the lawyer on the grounds that if he’d known how valuable this concession was, he never would have agreed. “The client could have asked,” says Bernstein, “but the on the other hand the lawyer should have been clearer.”

Take the time to explain implications of legal processes
Clients often don’t understand that a settlement is a final settlement. They may have thought maybe they could settle today and re-open the agreement later.

Misunderstandings such as this can stem from the fact that lawyers operate within a framework where certain concepts or rules are understood: “We all know that when you sign a release, that’s it,” says Bernstein. “Lawyers don’t always appreciate that clients don’t have that same frame of reference.” When a claim arises, it is then found that there is no letter from the lawyer to the client confirming the things they discussed, such as the fact that the settlement was final.

With limited retainers and possible unbundling of legal services, there will be more challenges for lawyers to communicate as clearly as possible about what they are retained to do and not retained to do, as well as the potential consequences of what they’re not being retained to do.

“There will be more of a burden on lawyers to hone their communication skills if they want to accept limited scope retainers and hope to get out of that process unscathed,” says Bernstein. This risk is not confined to family law, but family law has a high proportion of litigants who are self-represented and only want to retain a lawyer to do X, but not Y and Z.

Another way in which clients feel they can save money is by negotiating with the other side themselves. At the same time, the lawyers for each side are in communication as well. In situations like this things can get overlooked, or a lawyer can be left out of the loop.

Wills and estates

Cynthia Martin, unit director and counsel (PPL), Deborah Petch, claims counsel (PPL), and Pauline Sheps, claims counsel specialist (PPL) review the kinds of communication errors we see in wills, estates and trusts practice.

Ask questions – many questions

The biggest communication issues take place at the time the will is being drafted. The claim may result from drafting errors, but often it was poor communication that led to the drafting error.

Too many lawyers, says Martin, are not truly listening to the client’s instructions and not probing and questioning the client to uncover facts that may cause problems later.

“It’s not so much the client not providing the information as the lawyers failing to communicate what the lawyers need to know,” says Martin. “For instance, the client says: ‘I want to leave everything to my son.’ Fine, but does she have any other children? What did the prior will say?”

Are the beneficiaries identified correctly? (e.g., there is more than one St John’s Church in the city.) Did the lawyer ask about gift-overs in the event that a beneficiary is not alive at the time the testator dies? When the will drafting is complete lawyers should do a reporting letter to the client so that there will not be confusion in the future about why changes were made, beneficiaries added or removed, and so forth.

LAWPRO has seen in an increase in claims resulting from lawyers failing to ask about client assets when drafting wills. Too many lawyers don’t ask the simple question: “What assets to do you have?” (Given how many people in Ontario now come from other jurisdictions, lawyers should be asking about assets on a worldwide basis.)

It’s equally important to discuss how these assets will be distributed. This issue often arises in the case of second marriages. The clients want to leave everything to their respective children, but often what happens goes something like this: after the husband dies, the wife says that she didn’t understand that the assets would go to his children and not her; or conversely , all the assets are in joint names and – despite the will – at the end nothing is left to go to the children.

“Ask what the assets are, and ask how they are registered,” says Sheps. “Some lawyers tell us they don’t ask ‘because the client will have different assets when they die.’ That’s not a good enough reason not to ask.”

Get clarification given complexity of family structures and dynamics

Lawyers are increasingly likely to be dealing with a variety of family structures other than the traditional nuclear family. When the client uses words such as “married” or “my daughter,” those words may not necessarily mean what the lawyer thinks. The marriage could be common-law, and the daughter could be a step-daughter. To be absolutely sure of the nature of the relationships, ask questions and get clarification.

Talk to your client to understand family dynamics. You may discover information that could improve the advice you provide the client. If you know, for example, that two siblings don’t get along, it may not be wise to appoint them as joint powers of attorney or estate trustees.

“A dysfunctional family can lead to a dysfunctional estate,” says Sheps, who also recommends not agreeing to be an attorney or trustee if you know the family is fighting. “If they are unsatisfied with the management of the estate, they will all blame you”.

State who is doing what

Miscommunications regarding pensions often result in claims. The client may have made designations on their pension, life insurance, RRSP, etc., but a will can revoke those designations. There is often not enough discussion with clients about these designations, and what effect a will can have on them. The clients themselves may not be certain how the designations are arranged, and it may not be clear who was supposed to find out (client or lawyer) and what the consequences are for not making certain.

When dealing with powers of attorney, it is important to communicate to the attorney what his roles and obligations are. Template letters and a checklist are very good tools for this. This protects the lawyer from future accusations that “the lawyer didn’t tell me I couldn’t spend the money this way.”

The administration of an estate also requires clear communication: Keep records of who is responsible for what, in terms of what the lawyer is doing and what trustee is doing. If roles are divided, the work and responsibilities should be spelled out.

“If the lawyer is taking on work normally done by the estate trustee, there has to be a letter setting out clearly who is doing what,” says Petch, who recommends communicating with your trustee client what you’ll charge in legal fees for this work.

“We get a lot of complaints about the mishmash of the lawyer’s fees and executor’s fees. This is particularly true where the lawyer is a co-trustee.”

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Atlantic – How Will Shortz Edits a New York Times Crossword Puzzle – Alex Hoyt – Mr Crossword takes you behind the page that has the puzzle to show you how it's done.

Cosmos Magazine – New age nuclear – Tim Dean – A background piece (2006) on thorium, now that this magic metal is back in the news: Britain's Weinberg Foundation to promote thorium reactors has just launched.

The Australian – There's just one Hitch – David Free – An examination of one of our most aggressive and intelligent public intellectuals.

World Science Festival – Scents and Sensibilities: The Invisible Language of Smell – A 90-minute look (odour-free) at olfaction, which, we're told is "subconscious, pre-cognitive, and emotional" — which sound like some parties I attended in my youth.

ESPN The Magazine – Afghanistan national sport of buzkashi evolves in post-9/11 world - Carl Hoffman – A game involving riders, horses, a dead goat, and a chalk circle. It's apparently as earnest as war.

The Morning News – What's On? – Eric Feezell — A satirical TV guide for the upcoming season on the boob tube. Sounds way more interesting than the real stuff.

Wired Magazine – Winging It: America’s Cup Racers Push the Sailboat to Its Limits – Adam Fisher – In New Zealand, building and testing the newfangled craft that might take the cup.

YouTube – Complexity: The Secret Life of Chaos – BBC – This hour-long video explores how it is that "simple systems can turn into very complex systems."

The Atlantic - Can the Middle Class Be Saved? – Don Peck – A careful look at the ills besetting America and what might be done about them.

Isolex Payment Solutions – The 10 Acquisitions Yahoo’s New CEO Should Make On Day One – Jason Calacanis – "[M]y mission statement for Yahoo is to create the most important content in the world. The content that informs, entertains, shocks, connects with, infuriates and inspires people more than any other content on the planet."

The following article appeared in the new Fall 2011 issue of LAWPRO Magazine.

Don’t be a dupe: That’s the advice from those who were fooled.

In the months of July and August alone, hundreds of lawyers (from across Canada, the U.S., and even elsewhere in the world) have provided LAWPRO with emails seeking to retain them on bad cheque frauds. The most common scenarios are loan or debt collections and spousal support payments. (If you get obviously fraudulent emails, please forward them to fraudinfo@lawpro.ca) Dozens of Ontario lawyers have called looking for help in determining whether a matter they were handling was a legitimate one. In many cases we have recognized the name of the fraudster, the scenario and/or the text of the email. And where we don’t recognize the fraud, the members of the LAWPRO fraud team can use the collective experience of having seen many frauds to determine if a matter may be fraudulent. On a few occasions, we have seen matters that were highly suspicious, but still may have been legitimate retainers.

Clearly Ontario lawyers are more aware that they are the targets of fraud, and they are becoming more adept at recognizing frauds. That is good. But we see some complacency, too. We frequently hear comments such as“l would never be fooled,” or “How would anyone fall for one of these frauds?”

But some are falling for these frauds, acting through at least the initial stages of collecting information, sending a demand letter and communicating with the debtor – who just happens to call up wanting to pay immediately after getting the demand letter. And there are some lawyers who go all the way and are successfully duped into disbursing funds from their trust accounts. This happens more often at solo and small firms, but the biggest firms are not immune either.

One lawyer said to us: “I was suspicious at the start, but the client called several times, provided me with an Ontario driver’s license as ID and a bunch of documentation. He led me along and I got fooled. I feel stupid that I fell for it.”

Some of those who were duped were saved when the teller or the bank detected that the cheque was counterfeit. But don’t rely exclusively on the banks to protect you: They get fooled too. These counterfeits are really good. They will be in colour, on decent paper, and have holographs and watermarks.

In one recent case, a lawyer faxed to the bank a copy of a cheque drawn on the account of a major Canadian retailer. The bank replied that the signatures on the cheque matched what was on file and that the cheque looked good. The lawyer was told “out of an over abundance of caution you may want to contact the company to verify that the cheque is good.” The lawyer did so and it was confirmed that the cheque was bad. The fraud was one we had reported on the AvoidAClaim blog (avoidaclaim.com).

Frauds getting ever better

The fraudsters are changing it up to make fraudulent matters appear more legitimate.

We are seeing more phone calls or personalized emails as the initial contact (not generic BCC blasts to many people). We are also seeing new fake client names more frequently. In the sidebar to the right we list the new and most common names we’ve seen at LAWPRO in the last two months. But just because a name does not appear on this list does not mean you can stop worrying. New names are being used by fraudsters daily.

While in the past the fraudsters would sign retainer agreements and promise retainer cheques, they are now providing actual retainer cheques (which are fake of course),typically on a U.S. account. Banks will accept these for deposit, but will put a hold on them. Of course, a payment on the debt collection matter magically shows up from the debtor a day or two later, before the bogus retainer cheque bounces.

What to do if you are suspicious

If you have even the slightest suspicion that the matter you are handling isn’t legitimate, ask questions and dig deeper, especially if the facts don’t add up or are inconsistent. Click on the confirmed frauds button at the AvoidAClaim.com blog to see a full listing of confirmed frauds. (avoidaclaim.com/?pageid=1479). Search the client’s name on Google. Cross-check names, addresses and phone numbers.

If you still aren’t sure, Ontario lawyers should call LAWPRO for some direction. We will walk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. If the matter you are acting on turns out to be a fraud and there is a potential fraud if possible, and minimize potential claims costs. If you have been successfully duped, please immediately notify LAWPRO as there maybe a claim against you.

For more immediate updates on fraud and claims prevention, subscribe to the email or RSS feed updates from LAWPRO’s AvoidAClaim blog.

Fraud Fact Sheet

More fraud prevention information and resources are available on the practicePRO Fraud page (www.practicepro.ca/fraud),including the Fraud Fact Sheet, a handy reference for lawyers and law firm staff that describes the common frauds and the red flags that can help identify them.

Ultimately, if you are not completely sure a matter is legitimate, terminate the retainer. Don’t be sucked in by your emotions or a strong desire to help. Don’t let the lure of a generous fee cause you to ignore your concerns as to the legitimacy of a matter. If t looks too easy or sounds too good to be true, it probably is.

This is a post in a series to appear occasionally, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Hairpin – The Evolution of Ape-Face Johnson – Carolita Johnson – The story of how a girl and young woman learned about her "looks" and came to terms with her face.

YouTube – 1965. Bialetti Moka Express – A vintage ad from Italian TV featuring l’omino coi baffi — the mustachioed little man. [See also a piece in the NYTimes about the Moka Express.

The New Yorker - Town of Cats - Haruki Murakami - A short story by one of the best novelists alive, IMHO.

The Atlantic - Invisible, Inc. - Bruce Barcott - An investigation of modern camouflage, in which CADPAT (“Canadian Disruptive Pattern”) is displaced by pixels. By the way: isn't "camoufleur" a lovely word.

Smithsonian Magazine - Ten Enduring Myths About the U.S. Space Program - Mark Strauss - Please don't read this if you're a conspiracy theorist; it's Friday: go have some collusive fun instead.

New York Times - Tipitina - Hugh Laurie - Yes, that man sings and plays the New Orleans blues. Well. This is a tune by Professor Longhair, and after you've heard Laurie do it, you can hear a snippet of the Professor's 1953 version on iTunes.

Intelligent Life - A Man's Guide to a Woman's Wardrobe - Luke Leitch - "What has become clear is that fashion is to many women what sport is to many men: a pastime, a passion, a shared language, a form of self-definition, and a temporary escape from the opposite sex, all rolled into one deeply satisfying whole."

Boston Globe - Clawing back to lobster dominance - Jenifer B. McKim - "Maine takes on Canadians in processing catch" Those naughty Bluenosers have been up to no good -- to hear the Americans tell it.

Technology Review - The Mind's Eye - Martin Gayford - Investigating what David Hockney is up to with his 18 screens of high-definition images from 9 cameras.

Nature - Interview of Martin Blaser, author of Antibiotic overuse: Stop the killing of beneficial bacteria - The scientist postulates long-term, even permanent harm to our necessary good bacteria from the use of antibiotics. [See also the piece in Wired.]

The New Yorker – Arthur Rimbaud’s Brief Career – Daniel Mendelsohn – A meditation on one of the great artistic drop-outs of all time.

New York Times – The Fierce Intimacy of Tennis Rivalries – Gerald Marzorati – A thoughtful exploration of the great rivalries in this wildly popular spectator sport.

PennSound – Fat Feet – Mimi Gross and Red Grooms – An off the wall 20 minute animated film from the 60s — in case you're in need of a flashback.